CELEX: C2004/021/11
Language: en
Date: 2004-01-24 00:00:00
Title: Judgment of the Court (Fifth Chamber) of 4 December 2003 in Case C-92/02 (Reference for a preliminary ruling from the Arbeidsrechtbank van het Arrondissement Tongeren): Nina Kristiansen v Rĳksdienst voor Arbeidsvoorziening (Social security — National system of unemployment benefits laying down a rule against overlapping of benefits as regards certain income — Unemployment benefits for former members of the temporary staff of the European Communities — Freedom of movement for workers — National scheme of unemployment insurance — Classification of post-graduate occupation — Occupation of trainee fellowship student — Different classification in other Member States of the EEA — Discrimination)

C 21/6                   EN                              Official Journal of the European Union                                             24.1.2004
bourg) for a preliminary ruling in the proceedings pending                                        JUDGMENT OF THE COURT
before that court between Zita Modes Sàrl and Administration
de l’enregistrement et des domaines, on the interpretation of
Article 5(8) of Sixth Council Directive 77/388/EEC of 17 May                                                (Fifth Chamber)
1977 on the harmonisation of the laws of the Member States
relating to turnover taxes — Common system of value added                                                of 4 December 2003
tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as
amended by Council Directive 95/7/EC of 10 April 1995
amending Directive 77/388/EEC and introducing new simplifi-                      in Case C-92/02 (Reference for a preliminary ruling from
cation measures with regard to value added tax — scope of                        the Arbeidsrechtbank van het Arrondissement Tonge-
certain exemptions and practical arrangements for                                ren): Nina Kristiansen v Rijksdienst voor Arbeidsvoor-
implementing them (OJ 1995 L 102, p. 18), the Court (Fifth                                                      ziening (1)
Chamber), composed of: P. Jann, acting for the President of
the Fifth Chamber, D. A. O. Edward and S. von Bahr                               (Social security — National system of unemployment ben-
(Rapporteur), Judges; F. G. Jacobs, Advocate General; R. Grass,                  efits laying down a rule against overlapping of benefits as
Registrar, has given a judgment on 27 November 2003, in                          regards certain income — Unemployment benefits for former
which it has ruled:                                                              members of the temporary staff of the European Communi-
                                                                                 ties — Freedom of movement for workers — National
                                                                                 scheme of unemployment insurance — Classification of post-
                                                                                 graduate occupation — Occupation of trainee fellowship
1.    Article 5(8) of Sixth Council Directive 77/388/EEC of 17 May               student — Different classification in other Member States
      1977 on the harmonisation of the laws of the Member States                                   of the EEA — Discrimination)
      relating to turnover taxes — Common system of value added
      tax: uniform basis of assessment, as amended by Council                                                (2004/C 21/11)
      Directive 95/7/EC of 10 April 1995 amending Directive 77/
      388/EEC and introducing new simplification measures with
      regard to value added tax — scope of certain exemptions                                         (Language of the case: Dutch)
      and practical arrangements for implementing them, must be
      interpreted as meaning that when a Member State has made
      use of the option in the first sentence of that paragraph to               (Provisional translation; the definitive translation will be published
      consider that for the purposes of value added tax no supply of                                 in the European Court Reports)
      goods has taken place in the event of a transfer of a totality of
      assets, that no-supply rule applies — without prejudice to use
      of the possibility of restricting its application in the circum-
      stances laid down in the second sentence of the same paragraph             In Case C-92/02, Reference to the Court under Article 234 EC
      — to any transfer of a business or an independent part of an               by the Arbeidsrechtbank van het Arrondissement Tongeren
      undertaking, including tangible elements and, as the case                  (Belgium) for a preliminary ruling in the proceedings pending
      may be, intangible elements which, together, constitute an                 before that court between Nina Kristiansen and Rijksdienst
      undertaking or a part of an undertaking capable of carrying on             voor Arbeisdvoorziening, on the interpretation of Regulation
      an independent economic activity. The transferee must however              (EEC) No 1408/71 of the Council of 14 June 1971 on the
      intend to operate the business or the part of the undertaking              application of social security schemes to employed persons, to
      transferred and not simply to immediately liquidate the activity           self-employed persons and to members of their families
      concerned and sell the stock, if any.                                      moving within the Community, as amended and updated by
                                                                                 Council Regulation (EC) No 118/97 of 2 December 1996 (OJ
                                                                                 1997 L 28, p. 1), and of Regulation (EEC) No 1612/68 of the
                                                                                 Council of 15 October 1968 on freedom of movement for
2.    When a Member State has made use of the option in the first                workers within the Community (OJ, English Special Edition
      sentence of Article 5(8) of Sixth Directive 77/388, as amended             1968 (II), p. 475), the Court (Fifth Chamber), composed of:
      by Directive 95/7, to consider that for the purposes of value              C. W. A. Timmermans, acting for the President of the Fifth
      added tax no supply of goods has taken place in the event of a             Chamber, D. A. O. Edward and A. La Pergola (Rapporteur),
      transfer of a totality of assets, the restriction by a Member State        Judges; S. Alber, Advocate General; R. Grass, Registrar, has
      of the application of that no-supply rule to transfers of a totality       given a judgment on 4 December 2003, in which it has ruled:
      of assets where the transferee holds the authorisation for pursuit
      of the economic activity which that totality enables to be carried
      on infringes that provision.                                               1.    The second subparagraph of Article 28a(1) of the Conditions
                                                                                       of Employment of Other Servants of the European Communities
                                                                                       means that the relationship between the Community system of
                                                                                       unemployment benefits and those of the Member States is a
                                                                                       complementary one, which cannot be disregarded by a Member
(1) OJ C 44 of 16.2.2002.                                                              State in the application of its system of unemployment benefits
                                                                                       and, specifically, of a rule against the overlapping of benefits
                                                                                       under that system, to a former member of the temporary
                                                                                       staff who resides in that Member State and is entitled to
                                                                                       unemployment benefits paid under the Conditions of Employ-
                                                                                       ment of Other Servants of the European Communities.
 ---pagebreak--- 24.1.2004                 EN                         Official Journal of the European Union                                                  C 21/7
2.    The principle of non-discrimination laid down by Article 7(4)          Republic of Austria, the Republic of Finland and the Kingdom
      of Regulation (EEC) No 1612/68 of the Council of 15 October            of Sweden (OJ 1997 C 15, p. 1), the Court, composed
      1968 on freedom of movement for workers within the                     of: V. Skouris, President, P. Jann, C. W. A. Timmermans,
      Community does not preclude a person carrying on an activity           C. Gulmann, J. N. Cunha Rodrigues and A. Rosas (Presidents
      as a post-graduate student, such as the person in the main             of Chambers), D.A.O. Edward, A. La Pergola, J.-P. Puissochet,
      proceedings, from being deemed, in a Member State, to be a             R. Schintgen (Rapporteur), F. Macken, N. Colneric and S. von
      trainee fellowship student who is not entitled to any rights           Bahr, Judges; P. Léger, Advocate General; M.-F. Contet, Princi-
      under the national system of unemployment benefits, even               pal Administrator, for the Registrar, has given a judgment on
      though in other Member States a person carrying on similar             9 December 2003, in which it has ruled:
      activities is deemed to be carrying on an occupational activity
      and is entitled to benefits under the unemployment benefits
      system.
                                                                             1.   A national court may, under the Protocol of 3 June 1971 on
(1) OJ C 118 of 18.5.2002.                                                        the interpretation by the Court of Justice of the Convention of
                                                                                  27 September 1968 on Jurisdiction and the Enforcement of
                                                                                  Judgments in Civil and Commercial Matters, as amended by
                                                                                  the Convention of 9 October 1978 on the accession of the
                                                                                  Kingdom of Denmark, Ireland and the United Kingdom of
                                                                                  Great Britain and Northern Ireland, by the Convention of
                                                                                  25 October 1982 on the accession of the Hellenic Republic, by
                   JUDGMENT OF THE COURT                                          the Convention of 26 May 1989 on the accession of the
                                                                                  Kingdom of Spain and the Portuguese Republic and by the
                                                                                  Convention of 29 November 1996 on the accession of the
                         of 9 December 2003                                       Republic of Austria, the Republic of Finland and the Kingdom
                                                                                  of Sweden, refer to the Court of Justice a request for interpret-
in Case C-116/02 (Reference for a preliminary ruling from                         ation of the Brussels Convention, even where it relies on the
the Oberlandesgericht Innsbruck): Erich Gasser GmbH v                             submissions of a party to the main proceedings of which it has
                             MISAT Srl (1)                                        not yet examined the merits, provided that it considers, having
                                                                                  regard to the particular circumstances of the case, that a
                                                                                  preliminary ruling is necessary to enable it to give judgment
(Brussels Convention — Article 21 — Lis pendens —
                                                                                  and that the questions on which it seeks a ruling from the Court
Article 17 — Agreement conferring jurisdiction — Obli-
                                                                                  are relevant. It is nevertheless incumbent on the national court
gation to stay proceedings of court second seised designated
                                                                                  to provide the Court of Justice with factual and legal information
in an agreement conferring jurisdiction — Excessive duration
                                                                                  enabling it to give a useful interpretation of the Convention and
of proceedings before courts in the Member State of the court
                                                                                  to explain why it considers that a reply to its questions is
                              first seised)
                                                                                  necessary to enable it to give judgment.
                            (2004/C 21/12)
                     (Language of the case: German)                          2.   Article 21 of the Brussels Convention must be interpreted as
                                                                                  meaning that a court second seised whose jurisdiction has been
                                                                                  claimed under an agreement conferring jurisdiction must
(Provisional translation; the definitive translation will be published            nevertheless stay proceedings until the court first seised has
                     in the European Court Reports)                               declared that it has no jurisdiction.
In Case C-116/02: Reference to the Court under the Protocol
                                                                             3.   Article 21 of the Brussels Convention must be interpreted as
of 3 June 1971 on the interpretation by the Court of Justice of
                                                                                  meaning that it cannot be derogated from where, in general,
the Convention of 27 September 1968 on Jurisdiction and the
                                                                                  the duration of proceedings before the courts of the Contracting
Enforcement of Judgments in Civil and Commercial Matters
                                                                                  State in which the court first seised is established is excessively
by the Oberlandesgericht Innsbruck (Austria) for a preliminary
                                                                                  long.
ruling in the proceedings pending before that court between
Erich Gasser GmbH and MISAT Srl, on the interpretation of
Article 21 of the abovementioned Convention of 27 September
1968, as amended by the Convention of 9 October 1978 on
the accession of the Kingdom of Denmark, Ireland and the
United Kingdom of Great Britain and Northern Ireland (OJ                     (1) OJ C 144 of 15.6.2002.
1978 L 304, p. 1, and — amended text — p. 77), by the
Convention of 25 October 1982 on the accession of the
Hellenic Republic (OJ 1982 L 388, p. 1), by the Convention of
26 May 1989 on the accession of the Kingdom of Spain and
the Portuguese Republic (OJ 1989 L 285, p. 1) and by the
Convention of 29 November 1996 on the accession of the