CELEX: C1999/048/23
Language: en
Date: 1999-02-20 00:00:00
Title: Reference for a preliminary ruling by the Verwaltungsgerichtshof Baden-Württemberg by order of that court of 5 November 1998 in the case of Bayram Ali Lotoz v. Landeshauptstadt Stuttgart - Amt für öffentliche Ordnung (Case C-445/98)

20.2.1999            EN                  Official Journal of the European Communities                                    C 48/13
Reference      for    a    preliminary     ruling   by    the       5. Alternatively, when determining whether the criterion
Arrondissementsrechtbank te Roermond by order of that                    referred to in Question 3 above is fulfilled, should a
court of 3 December 1998 in the case of R. J. de Laat                    more formal test be applied, such as, for example,
against Board of the Landelijk Instituut Sociale                         whether or not there is a continuing employment
                         Verzekeringen                                   relationship for the purposes of labour law?
                       (Case C-444/98)
                                                                    6. Having regard to the answers to the above questions,
                        (1999/C 48/22)                                   is a frontier worker who, immediately following his
                                                                         dismissal from full-time employment, commences
                                                                         work with the same employer under a part-time
                                                                         contract of employment to be regarded as a partially
Reference has been made to the Court of Justice                          unemployed frontier worker within the meaning of
of the European Communities by order of the                              Article 71(1)(a)(i) of the Regulation or as a wholly
Arrondissementsrechtbank te Roermond (District Court,                    unemployed frontier worker within the meaning of
Roermond) of 3 December 1998, received at the Court                      Article 71(1)(a)(ii) of the Regulation?
Registry on 7 December 1998, for a preliminary ruling in
the case of R. J. de Laat against Board of the Landelijk
                                                                    (1) Updated version, OJ L 28, 30.1.1997, p. 1.
Instituut Sociale Verzekeringen on the following questions:
1. When determining whether a frontier worker is
    partially unemployed and therefore on the basis of
    Article 71(1)(a)(i) of Council Regulation (EEC)                 Reference      for    a     preliminary     ruling  by    the
    No 1408/71 (1) may claim benefit from the competent             Verwaltungsgerichtshof Baden-Württemberg by order of
    Member State, or is wholly unemployed and therefore             that court of 5 November 1998 in the case of Bayram Ali
    on the basis of Article 71(1)(a)(ii) of Regulation (EEC)        Lotoz v. Landeshauptstadt Stuttgart Ð Amt für öffentliche
    No 1408/71 may claim benefit from the Member State                                          Ordnung
    in which he resides, is it relevant whether under the
    national legislation of the competent Member State or                                   (Case C-445/98)
    of the Member State in which he resides the worker in                                    (1999/C 48/23)
    question is to be regarded as partially or wholly
    unemployed or should partially unemployed' and
    wholly unemployed' be given a univocal Ð                       Reference has been made to the Court of Justice
    Community Ð construction?                                       of the European Communities by order of the
                                                                    Verwaltungsgerichtshof         Baden-Württemberg      (Higher
                                                                    Administrative Court, Baden-Württemberg) of 5 November
                                                                    1998, received at the Court Registry on 7 December 1998,
2. If the classification under national law is relevant,
                                                                    for a preliminary ruling in the case of Bayram Ali Lotoz
    which classification should prevail where the view
                                                                    against Landeshauptstadt Stuttgart Ð Amt für öffentliche
    adopted under the law of the competent Member State
                                                                    Ordnung (City of Stuttgart, Public Order Department) on
    and that under the law of the Member State in which
                                                                    the following questions:
    the worker resides lead to different results?
                                                                    1. Does a family member who has been legally resident
                                                                         with a Turkish worker for five years within the
3. If the classification under national law is irrelevant
                                                                         meaning of the second indent of the first paragraph of
    and partially unemployed' or wholly unemployed'
                                                                         Article 7 of Decision No 1/80, and who does not fulfil
    must be given a univocal Ð Community Ð
                                                                         the requirements for availing himself of the rights
    construction, what criterion should then be applied?
                                                                         under Article 6(1) of Decision No 1/80, continue to
                                                                         enjoy the entitlement under the second indent of the
                                                                         first paragraph of Article 7 of Decision 1/80 in
4. Is it of decisive importance in that regard whether or                circumstances where, because of an officially certified
    not there is a continuing link with the State of                     incapacity for work, the Turkish worker now merely
    employment, and if so, what conditions must be                       draws a pension and engages in minor employment as
    satisfied for there to be such a link? Is there such a               an auxiliary in a hotel/restaurant?
    link if:
                                                                    2. Does a family member who has been legally resident
                                                                         with the Turkish worker for five years within the
    (a) there is a concrete prospect that the employee may               meaning of the second indent of the first paragraph of
         be re-employed by the former employer or                        Article 7 of Decision No 1/80 continue, after those
                                                                         five years, to be legally resident within the meaning of
                                                                         that provision if, under the domestic law of the
    (b) the employee continues to work in the same State,                Member State, his residence is deemed to be
         even though to a lesser extent?                                 temporarily authorised only on the basis of an
 ---pagebreak--- C 48/14                EN                 Official Journal of the European Communities                                 20.2.1999
    application for the extension of his residence permit,               Composition) of 16 September 1998 in case T-110/94,
    and the authority subsequently refuses the application?              International Express Carriers Conference (IECC) v.
                                                                         Commission of the European Communities;
3. Where a Turkish national commits an offence against
    the Narcotics Law, and on specific and general
    preventive grounds the authorities have no discretion            Ð decide on the case pursuant to Article 54 of the
    in the matter, is the limitation', within the meaning of            Statute (EC) of the Court and annul the decision of
    Article 14(1) of Decision No 1/80, of his entitlement                17 February 1995 of the Commission contested in case
    acquired pursuant the second indent of the first                     T-110/95;
    paragraph of Article 7 of Decision No 1/80 justified'
    on grounds of public policy, public security or public
    health if, on the evidence of his personal conduct, it           Ð order the Commission to pay the costs of the
    may reasonably be expected that he will not re-offend?               proceedings before the Court of First Instance as well
    In determining that question, are the criteria which                 as the costs of the present proceedings;
    apply the same as those under Article 48(3) of the EC
    Treaty and Article 3(1) and (2) of Council Directive
    64/221/EEC of 25 February 1964 (1) on the                        Ð order the interveners before the Court of First Instance
    coordination of special measures concerning the                      to pay the applicant's costs before the Court of First
    movement and residence of foreign nationals which                    Instance relating to the interventions in these
    are justified on grounds of public policy, public                    proceedings;
    security or public health?
(1) OJ, English Special Edition 1963Ð1964, p. 117.                   Ð alternatively, in the event that it does not decide on
                                                                         the case, reserve the costs and refer the matter to a
                                                                         Chamber of the Court of First Instance composed of
                                                                         judges other than those present in case T-110/95.
Appeal brought on 8 December 1998 by International                   Pleas in law and main arguments adduced in support
Express Carriers Conference (IECC) against the judgment
delivered on 16 September 1998 by the Third Chamber,
Extended Composition, of the Court of First Instance of              1. It is submitted that the Court of First Instance
the European Communities in case T-110/95 (1) between                    committed a manifest factual error in examining the
International Express Carriers Conference (IECC) and the                 documents submitted to it. It justified the
Commission of the European Communities, supported by                     Commission's affirmations which relied upon one
the United Kingdom of Great Britain and Northern                         document (the Briefing paper), by making reference to
            Ireland, La Poste and The Post Office                        another document (the draft REIMS Agreement)
                       (Case C-449/98 P)                                 which, it is a fact, the Commission had not examined
                         (1999/C 48/24)                                  at the time when the decision was adopted.
An appeal against the judgment delivered on 16 September             2. The Appellant submits that the Court of First Instance
1998 by the Third Chamber, Extended Composition, of                      committed an error of law in ruling that the
the Court of First Instance of the European Communities                  Commission was entitled to reject the Appellant's
in case T-110/95 between International Express Carriers                  complaint on grounds of Community interest, by
Conference (IECC) and the Commission of the European                     invoking Article 3 of Regulation 17/62 (2), even though
Communities, supported by the United Kingdom of Great                    the existence of an obvious restriction of competition
Britain and Northern Ireland, La Poste and The Post                      had been demonstrated.
Office, was brought before the Court of Justice of the
European Communities on 8 December 1998 by
International Express Carriers Conference (IECC), a                      Alternatively, the Appellant submits that, in the event
professional organisation established under Swiss law,                   that Community interest can be invoked in a case
having its registered office in Geneva (Switzerland),                    which was fully investigated, the Court of First
represented by Eric Morgan de Rivery, member of the                      Instance violated the legal principles applying to that
Paris Bar, Jacques Derenne, member of the Paris and                      Community interest.
Brussels Bars and Monica Cunningham, member of the
Brussels Bar, with an address for service in Luxembourg at
the Chambers of Alex Schmitt, Bonn & Schmitt, 7, Val Ste
                                                                         The Appellant also submits that the Court of First
Croix.
                                                                         Instance erred in law in considering that the
                                                                         Commission was justified in rejecting the complaint on
The Appellant claims that the Court should:                              the grounds that it had proper cause to assume that
                                                                         the conduct of the undertakings concerned will be
Ð annul the judgment of the Court of First Instance of                   amended in a manner conducive to the general
    the European Communities (Third Chamber, Extended                    interest.