CELEX: C1995/268/27
Language: en
Date: 1995-10-14 00:00:00
Title: Action brought on 4 August 1995 by the Commission of the European Communities against the French Republic (Case C-265/95)

No C 268/ 12            EN                  Official Journal of the European Communities                                  14 . 10 . 95
Reference for a preliminary ruling from the                            is a law of a Member State which, in laying down the
Bundesfinanzhof by order of that court of 11 May 1995 in               procedural rules by which citizens who have a right to the
the case of Julius Fillibeck Sôhne GmbH &c Co KG v.                    reparation of damage conferred on them by Community law
                       Finanzamt Neustadt                              following the failure to implement directives which are not
                         ( Case C-258/95 )                             directly applicable, requires the injured party to bring
                             95/C 268/25 )
                                                                       judicial proceedings subject to a one-year limitation period
                                                                       starting from the date when the aforementioned domestic
Reference has been made to the Court of Justice of the                 rules entered into force compatible with the correct
European Communities by an order of the Bundesfinanzhof                interpretation of Article 5 of the EC Treaty, as construed in
( Federal Finance Court ) — Fifth Senate — of 1 1 May 1 995 ,          the light of the principles laid down in the case-law of the
which was received at the Court Registry on 31 July 1995 ,             Court of Justice cited in the grounds of this order, where, in
                                                                       contrast, under the domestic law of the Member State in
for a preliminary ruling in the case of Julius Fillibeck Sohne
GmbH & Co KG v. Finanzamt Neustadt on the following                    question actions for the reparation of non-contractual
questions :                                                            damage are normally subject to a five-year prescription
                                                                       period and the action for obtaining social security payments
1 . does the transport service of an employer constitute a             under the statutory system arising out of the full
    service 'effected for consideration' within the meaning            implementation of the Directive ( Directive 80/987/EEC of
    of Article 2 ( 1 ) of Directive 77/3 8 8/EEC ( 1 ) — that is to    20 October 1980 on the approximation of the laws of the
    say, effected for a proportion to be estimated of the              Member States relating to the protection of employees in the
    work performed by the employees — where, pursuant to               event of the insolvency of the employer ) is subject to a
    a collective agreement, the employer carries employees             time-limit of one year, which, however, is a period of
     ( without specially agreed and calculated consideration )         prescription, thereby introducing, for the purposes of the
    from their homes to the workplace where they are more              judicial protection of rights based on Community law, a
    than a specified distance apart, and the work performed            procedural mechanism which differs in the aforementioned
    — which has no actual connection with such transport               respects from ' similar' actions and remedies provided for by
    services — is already to be carried out in return for the          the domestic law of the Member State in question, it being
    agreed money wages as in the case of the other                     pointed out that, in any event, all claims for payments to be
    employees ?                                                        made by the agency which is under a duty under the law to
                                                                       make reparation for the damage are subject at present to a
2 . Does Article 6 ( 2)ofDirective77/388/EECcovertheuse                one-year limitation period under the domestic law of the
    of goods forming part of the assets of the business or a           Member State in question ? Is the national court bound,
    service carried out free of charge even where — as in the          where appropriate , to disapply that limitation period,
    case of the carriage of employees from their homes to the          thereby enabling citizens who have suffered damage to bring
    workplace and back in a vehicle of the undertaking free            an action outside the one-year limitation period and, if so,
    of charge — it does not serve purposes other than those            within the five-year prescription period prescribed for the
    of the business as far as the employer is concerned , but          ordinary action for reparation or within the one-year
    does serve the employees' private purposes and the                 prescription period laid down for obtaining social security
    employees are not charged turnover tax in this respect             payments under the ' basic' system ?
     ( on account of their use free of charge of the transport
    service )?
3 . In the event that question 2 is answered in the
    affirmative : does Article 6 ( 2 ) of Directive 77/338/EEC
    also cover a case where the employer does not carry the
    employees in its own vehicles, but commissions a third             Action brought on 4 August 1995 by the Commission of the
    party ( in the instant case, one of its own employees ) to            European Communities against the French Republic
    effect the transport ?
                                                                                               Case C-265 /95 )
(') OJ No L 145 , 13 . 6 . 1977, p . 1 .                                                         95/C 268 /27
                                                                       An action against the French Republic was brought before
                                                                       the Court of Justice of the European Communities on
Reference for a preliminary ruling by the Pretura                      4 August 1995 by the Commission of the European
Circondariale di Frosinone by order of that court of 27 June           Communities, represented by Hendrik van Lier, Legal
        1995 in the case of Rosalba Palmisani v. INPS                  Adviser, and Jean-Francis Pasquier, a national official on
                         ( Case C-261/95 )
                                                                       secondment to the Legal Service, acting as agents, with an
                                                                       address for service in Luxembourg at the office of Carlos
                           ( 95/C 268/26 )                             Gômez de la Cruz, Wagner Centre , Kirchberg.
Reference has been made to the Court of Justice of the
European Communities by order of 27 June 1995 of the                   The Commission of the European Communities claims that
Pretura Circondariale di Frosinone ( Magistrates' Court,               the Court should :
Fronsinone ), which was received at the Court Registry on
3 August 1995 , for a preliminary ruling in the case of                — declare that, by failing to adopt all the appropriate
Pasalba Palmisani v . INPS on the following question :                     measures necessary in order to prevent acts committed
 ---pagebreak--- 14. 10. 95            1 EN j               Official Journal of the European Communities                               No C 268/13
     by individuals from obstructing the free movement of             forces of law and order have either not been present or have
     fruit and vegetables, the French Republic has failed to          declined to take any active steps to prevent destruction from
     fulfil its obligations under the common organization of          taking place, or have failed to make use of information
     the market in agricultural products and Article 30 of the        available to them in order to avert incidents . Furthermore,
     EC Treaty in conjunction with Article 5 thereof,                 the facts communicated do not show that the French
                                                                      authorities have taken the measures necessary in order
— order the French Republic to pay the costs .                        effectively to penalize those responsible for the acts of
                                                                      destruction and menaces .
Pleas in law and main arguments adduced in support:
Article 30 of the EC Treaty must be regarded as forming part
of the common organization of the market in agricultural              Reference for a preliminary ruling by the High Court of
products . The right to the free movement of goods enshrined         Justice, Chancery Division, Patents Court, by order of that
in the Treaty obliges Member States to adopt all appropriate          court of 13 July 1995 , in the case of Beecham Group pic
measures to ensure compliance with that principle,                                   against Europharm of Worthing Ltd
including measures against individuals who compromise the
                                                                                               ( Case C-268/95 )
exercise of that right.
                                                                                                 ( 95/C 268/28 )
In 1993 , the Commission was forced to conclude that acts of
violence ( attacks upon, and the destruction of, shipments            Reference has been made to the Court of Justice of the
and means of transport, threats against lorry-drivers and             European Communities by an order of the High Court of
distributors of fruit and vegetables ) had ceased to be acts of       Justice, Chancery Division, Patents Court, of 13 July 1995 ,
an isolated and impulsive nature, as they had been in the             which was received at the Court Registry on 9 August 1995 ,
past, and had , at the prompting of certain groups such as            for a preliminary ruling in the case of Beecham Group pic
Coordination rurale, become part of an organized plan to              against Europharm of Worthing Ltd, on the following
control the supply of goods imported from other Member                questions :
States . Between April and July 1993 , shipments of Spanish
fruit and vegetables , in particular strawberries intended for        1.     that the provisions and effect of Article 47 of the
the French market or in transit on the territory of the French               Spanish Treaty of Accession to the European
Republic, were subjected to a campaign of harassment                         Communities will continue to apply to pharmaceutical
orchestrated by the Coordination rurale movement. In                         products
August and September, shipments of tomatoes from
Belgium were in turn targeted by Coordination rurale.                 1.1 imported from Spain, or
Between April and May 1994 , a fresh campaign of violence
was launched in France with a view to obstructing the free            1.2 first marketed in Spain
movement on French territory of strawberries arriving from
Spain and Morocco . In addition, the Commission received              until
information regarding various illegal activities by
organizations such as Coordination rurale, which continued                   ( a ) 7 October 1995 , or
to threaten and blackmail wholesale and retail commercial
centres offering for sale products from other Member States                  ( b ) 31 December 1995 , or
( for example, Spanish strawberries and Belgian
tomatoes ).                                                                  (c ) 7 October 1996 , or
Given that the Community is entitled, in view of the                         ( d ) 31 December 1996, or
repeated and serious infringements of the French Penal
Code which have taken place over several years ( acts of                     ( e ) the end of the third year after the particular
destruction and menaces by gangs ), to expect the French                           pharmaceutical, protected by a product patent in
authorities, in particular the forces of law and order and the                     one or more Member State(s ) of the European
judicial authorities , to take action to prevent and suppress                      Union and which was previously unpatentable in
such infringements on the basis of clear and positive                              Spain, has become patentable in Spain
instructions, by means of an appropriate, vigorous and
rapid system of police intervention putting an effective stop         stating which of such dates is applicable with regard to such
to such destruction and menaces, and by means of effective            acts .
judicial investigations undertaken with the resolute aim of
prosecuting offenders, the Commission is bound to                     2.     After the expiration of Article 47, in case where :
conclude that the response of the French authorities is
inadequate in structural terms .
                                                                      2.1 an undertaking is the proprietor ( the 'Proprietor') of a
                                                                             patent (the 'Patent') in one or more Member States of
It appears from the facts available to the Commission that,                  the European Communities ( the 'Member State') for a
all too often, and repeatedly over a number of years, the                    pharmaceutical product ( the 'Pharmaceutical');