CELEX: C1998/137/20
Language: en
Date: 1998-05-02 00:00:00
Title: Reference for a preliminary ruling by the Højesteret by order of 18 February 1998 in the case of Skatteministeriet v. Bent Vestergaard (Case C-55/98)

C 137/10             EN                Official Journal of the European Communities                                      2.5.98
1. Are Articles 48, 59 and 60 of the EC Treaty to be                   provision of services (2) to be interpreted as in any
   interpreted as infringed by a provision of national law,            event, having regard to the correct interpretation of
   the first sentence of paragraph 1(3) of the Arbeitneh-              Articles 48, 59 and 60 of the EC Treaty, neither
   merentsendegesetz (Law on the Posting of Workers),                  requiring nor permitting the rules at issue in
   which extends the application of provisions of                      questions 1, 2 and 3?
   collective agreements which have been declared
   generally binding concerning the collection of                 (1) OJ L 307, 13.12.1993, p. 18.
   contributions and the grant of benefits in connection          (2) OJ L 18, 21.1.1997, p. 1.
   with workers' holiday entitlements by joint bodies of
   parties to collective agreements, and thus the
   provisions of those agreements concerning the scheme
   to be complied with in that regard, to employers
   resident abroad and their workers who have been
   posted to the area within which those collective               Reference for a preliminary ruling by the Hùjesteret by
   agreements apply?                                              order of 18 February 1998 in the case of Skatteministeriet
                                                                                        v. Bent Vestergaard
2. Are Articles 48, 59 and 60 of the EC Treaty to be                                       (Case C-55/98)
   interpreted as infringed by the second sentence of                                       (98/C 137/20)
   paragraph 1(1) and the first sentence of paragraph 1(3)
   of the Arbeitnehmerentsendegesetz which result in the
   application of provisions of collective agreements             Reference has been made to the Court of Justice of the
   declared to be generally binding which:                        European Communities by order of 18 February 1998
                                                                  from the Hùjesteret (Danish Supreme Court), which was
   (a) provide for a length of leave which exceeds the            received at the Court Registry on 24 February 1998, for a
       minimum length of annual leave laid down in                preliminary ruling in the case of Skatteministeriet
       Council Directive 93/104/EC of 23 November                 (Ministry of Fiscal Affairs) v. Bent Vestergaard on the
       1993 (1) concerning certain aspects of the                 following questions.
       organisation of working time, and/or
                                                                  1. Is it in accordance with Articles 6 and 59 of the EC
   (b) allow employers resident in Germany to claim the                Treaty for Danish case-law (see the judgment of the
       reimbursement of expenditure on holiday pay and                 Hùjesteret of 19 October 1994, reproduced in
       holiday allowances from joint bodies of the parties             Ugeskrift for Retsvñsen 1994, p. 970) to apply a
       to the collective agreements whereas, in the case of            presumption that, in cases in which a course is held in
       employers resident abroad, they do not provide for              an ordinary tourist resort outside Denmark and the
       such a claim but instead for a direct claim by the              course location cannot, as such, be justified on
       posted workers against the joint bodies of the                  professional grounds, the course involves such a
       parties to the collective agreements, and/or                    significant tourism element that the costs of the course
                                                                       cannot be treated as constituting deductible operating
   (c) in connection with the social fund scheme to be                 costs?
       complied with under those collective agreements,
       impose on employers resident abroad obligations            2. If the answer is no: can the national legal position in
       to provide information to the joint bodies of the               the area of taxation be justified by reference to the
       parties to the collective agreements whereby the                case-law of the Court of Justice, in particular Case
       amount of information to be given exceeds the                   C-204/90 Bachmann v. Belgium (1) and Case C-250/95
       amount required from employers resident in                      Futura Participations and Singer v. Administration des
       Germany?                                                        Contributions (2)?
3. Are Articles 48, 59 and 60 of the EC Treaty to be              (1) Judgment of 28.1.1992, [1992] ECR I-249
   interpreted as infringed by paragraph 1(4) of the              (2) Judgment of 15.5.1997, [1997] ECR I-2471.
   Arbeitnehmerentsendegesetz under which, for the
   purposes of classifying businesses as covered by a
   collective agreement which has been declared generally
   binding and which, under the first sentence of
   paragraph 1(3) of that Law, also applies to employers
   resident abroad and their workers who have been                Appeal brought on 26 February 1998 by Associación
   posted to the area within which that collective                Telefónica de Mutualistas (ATM) against the judgment
   agreement applies, all workers posted to Germany, but          delivered on 18 December 1997 by the First Chamber,
   only those workers, are treated as a business, while a         Extended Composition, of the Court of First Instance of
   different definition of a business applies to employers        the European Communities in Case T-178/94 between
   resident in Germany which in certain cases results in          Associación Telefónica de Mutualistas (ATM) and
   different businesses falling within the field of                        Commission of the European Communities
   application of the generally binding collective                                       (Case C-57/98 P)
   agreement?
                                                                                            (98/C 137/21)
4. Is Article 3(1)(b) of European Parliament and Council
   Directive 96/71/EC of 16 December 1996 concerning              An appeal against the judgment delivered on 18 December
   the posting of workers in the framework of the                 1997 by the First Chamber, Extended Composition, of the