CELEX: C1997/357/27
Language: en
Date: 1997-11-22 00:00:00
Title: Reference for a preliminary ruling from the Arbeitsgericht Gelsenkirchen, by order of that court of 29 August 1997, in the case of Susanne Lewen v. Lothar Denda, as proprietor of the Firm Denda Zahntechnik (Case C-333/97)

22 . 11 . 97            ENl                 Official Journal of the European Communities                                  C 357/ 15
     The State did not grant EPAC any aid. It merely                       how retaining the aid until a judicial decision is given
     corrected in very moderate terms and in some small                    could result in damage to competitors which could not
     measure the consequences of its earlier behaviour                     be made good, in the event that they were proven to
     which had seriously harmed the undertaking. When                      exist, by means of an action for compensation brought
     the Portuguese Government set up SILOPOR it did                       against the Portuguese State, in the event that it was
     not provide it with the sufficient capital for it to pay              found that it acted contrary to the Community system
     to EPAC the value of the assets transferred from one                  of State aid .
     to the other. It would have sufficed for SILOPOR to
     have paid its debt to EPAC for the latter not to have
     needed at all the State's guarantee and to re-establish
     totally its financial equilibrium .                               — It is not possible in law for the Portuguese State to
                                                                           adopt the measure imposed by the Commission by
                                                                           way of the contested decision .
— Infringement of Articles 222 and 90 of the EC Treaty
     ( arbitrary discrimination between public and private             — Breach of the principle of legitimate expectations: the
     undertakings ): even supposing that the guarantee did                 reasons underlying the grant by the Portuguese State
     constitute State aid under Article 92 ( 1 ), the measure
                                                                           of the guarantee for the operation to consolidate
     would be justified under Article 90 (2 ) of the EC                    EPAC's bank debts, which are directly related to its
     Treaty. EPAC does not just import and market cereals.                 liability in respect of the situation concerning
     Its activity in this field is important enough in terms of            SILOPOR, which is unable to pay its own debt to
     the general economic interest, given the large volume                 EPAC, are sufficient to give rise to a legitimate
     of the cereal imported to supply the country. However,                expectation on the part of EPAC and the creditor
     the undertaking also ( i ) supplies seed, fertilizer and              banks that the guarantee is lawful.
     plant protection products to the Portuguese agriculture
     industry; ( ii ) purchases cereals from the Portuguese
     producers, the majority of whom are smallholders
     who thus overcome the difficulties of marketing
     their cereal; ( iii ) provides services to industry and
     agriculture such as, for example, laboratory facilities,
     technical assistance for agricultural production, acting
     as intermediary for harvest insurance and financing,              Reference for a preliminary ruling from the Arbeitsgericht
     crop spraying, storage, drying and measuring of the               Gelsenkirchen, by order of that court of 29 August 1997,
     cereal .
                                                                       in the case of Susanne Lewen v. Lothar Denda, as
                                                                                proprietor of the Firm Denda Zahntechnik
                                                                                             ( Case C-333/97)
— Infringement of Article 92 ( 1 ) of the EC Treaty: the
     guarantee did not have the effect of distorting                                           ( 97/C 357/27 )
     competition or affecting intra-Community trade . The
     mere setting out of statistics showing the existence of
     commercial exchange between Portugal and the
     European Community in the cereal sector cannot be                 Reference has been made to the Court of Justice of the
     accepted as sufficient evidence .                                 European Communities by order of the Arbeitsgericht
                                                                       ( Labour Court) Gelsenkirchen, Third Chamber, of
                                                                       29 August 1997, received at the Court Registry on
                                                                       24 September 1997, for a preliminary ruling in the case of
— Infringement of Article 93 ( 3 ) ( c ) of the EC Treaty: the         Susanne Lewen v. Lothar Denda, as proprietor of the firm
     arguments put forward by the Commission to refrain                Denda Zahntechnik, on the following questions :
     from applying the exemptions under Article 92 ( 3 ), in
     particular those in subparagraph ( c ), are inadequate
     and contrary to the guidelines, defined by the
     Commission itself, which were considered admissible               1 . Is a Christmas bonus 'pay' within the meaning of
     in the Community's case-law. The Commission did not                   Article 119 of the EC Treaty or 'payment' within the
     accept the justification that the guarantee was                       meaning of Article 11 ( 2 ) ( b ) of Directive 92/85/
     emergency aid basing its opinion on serious and                       EEC (') for work performed in the year in which the
     blatant errors of fact and of law, and by failing to                  bonus is awarded even where it is given by the
     adduce any evidence as to whether the common                          employer mainly or exclusively as an incentive for
     interest was adversely affected, did not fully exclude                future work and/or loyalty to the firm . Is it to be
     the application of the exemptions under Article 92 ( 3 )              regarded as in the nature of pay or payment at least
     ( c ).                                                                where the employer has not announced prior to the
                                                                           beginning of the year of the award that at Chistmas in
                                                                           the following year he intends to relate it exclusively to
                                                                           the performance of future work and so to exclude
— Breach of the principle of proportionality: inasmuch as                  from the payment employees whose employment
     withdrawal of the aid would produce immediate and,                    relationship at the time of payment and thereafter are
     as regards EPAC, irreversible damage, it is hard to see               in abeyance ?
 ---pagebreak--- C 357/ 16                  EN                  Official Journal of the European Communities                                 22 . 11 . 97
2 . Is there a breach of Article 119 of the EC Treaty,                    The applicant claims that the Court should:
      Article 11 ( 2 ) of Directive 92/85/EEC and clause 2 ( 6 )
      of the Annex to Directive 96/34/EC (2) ( which is yet to
      be transposed ) if an employer wholly excludes women                — order the Comune di Montorio al Vomano to refund :
      who are on parenting leave (Erziehungsurlaub) at the
      time of payment of the Christmas bonus from receipt                      — Lit 455 200 000, together with Lit 650 885 399 by
      of the bonus and does not take into account work
                                                                                   way of interest, in respect of the financing of
      performed and periods completed for the protection                           contract 147,
      of mothers (in which they were prohibited from
      working)?
                                                                               — Lit 158 400 000, together with Lit 243 672 000 by
                                                                                   way of interest, in respect of the financing of
                                                                                   contract 149 ,
3 . If Question 2 is to be answered in the affirmative :
                                                                               that is to say, the total §um of Lit 1 508 157 399
                                                                               together with further interest as from 31 August 1997
      Is there a breach of Article 119 of the EC Treaty,                       until the day on which repayment is fully effected,
      Article 11 ( 2 ) ( b ) of Directive 92/85/EEC and clause 2               following rescission of the two contracts referred to
       ( 6 ) of the Annex to Directive 96/34/EC if, when                       above,
      awarding a Christmas bonus to a woman who is on
      parenting leave, an employer takes into account the
      following periods by way of pro rata reduction:                     — order the Comune di Montorio al Vomano to pay the
                                                                               Commission Lit 50 000 000 by way of damages or
                                                                               such sum as may be considered due compensation for
      — periods of parenting leave;                                            the damage suffered by reason of its faillure to
                                                                               perform its obligations,
      — periods for the protection of mothers ( in which she              — order the Comune di Montorio al Vomano to pay the
             was prohibited from working)?                                     costs .
                                                                          Pleas in law and main arguments adduced in support:
The Arbeitsgericht requests the Court of Justice to give a
ruling, in the context of the questions referred by it, also
on the scope of clause 2 ( 6 ) of the Annex to Directive 96/              The object of this action, which is based on an arbitration
34/EC .                                                                   clause, is to recover financial assistance which the
                                                                          Commission granted the defendant so that it could
                                                                          construct ( a ) a 225 kW combined wind/diesel energy
(') OJ L 348 , 28 . 11 . 1992, p. 1 .                                     system with optimum power distribution ( contract No WE/
( 2 ) OJ L 145 , 19 . 6 . 1996 , p. 4 .
                                                                          147-85 ) and ( b ) a hydroelectric generator plant combined
                                                                          with a wind/diesel energy system ( contract No HY/149­
                                                                          85 ). The Commission decided to withdraw from the
                                                                          contracts, drawn up between the parties in accordance
                                                                          with Italian law, on account of the defendant's failure to
                                                                          perform its obligations thereunder.
Action brought on 24 September 1997 by the Commission
of the European Communities against the Comune di
                          Montorio al Vomano
                             ( Case C-334/97)
                                                                          Reference for preliminary ruling by the Arbeidshof te Ant­
                               ( 97/C 357/28 )                            werpen by judgment of that court of 17 September 1997
                                                                          in the case of Rijksdienst voor Pensioenen against Wim
                                                                                                     Westenborg
                                                                                                  Case C-335 /97 )
An action against the Comune di Montorio al Vomano
was brought before the Court of Justice of the European                                            ( 97/C 357/29
Communities on 24 September 1997 by the Commission
of the European Communities, represented by Paolo
Stancanelli of its Legal Service, assisted by Alberto Dal                 Reference has been made to the Court of Justice of the
Ferro, Avvocato, acting as Agents, with an address for                    European Communities by judgment of the Arbeidshof
service in Luxembourg at the office of Carlos Gomez de la                 (Higher Labour Court), Antwerp, of 17 September 1997,
Cruz, Wagner Centre, rue Alcide de Gasperi .                              received at the Court Registry on 26 September 1997, for