CELEX: C2002/084/32
Language: en
Date: 2002-04-06 00:00:00
Title: Judgment of the Court (Fifth Chamber) 15 January 2002 in Case C-43/00 (Reference for a preliminary ruling from the Vestre Landsret): Andersen og Jensen ApS v Skatteministeriet (Approximation of laws — Directive 90/434/EEC — Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares — Transfer of assets or of a branch of activity — Meaning)

C 84/20                  EN                      Official Journal of the European Communities                                           6.4.2002
the national legislation, even where a directive on the mutual              1.    Declares that, by not drawing up waste management plans
recognition of diplomas has been adopted for the profession concerned,            covering the whole of its territory and complying with all the
but where application of that directive does not result in automatic              provisions of Council Directive 75/442/EEC of 15 July 1975
recognition of the applicant’s qualification or qualifications.                   on waste, as amended by Council Directive 91/156/EEC of
                                                                                  18 March 1991, of Council Directive 91/689/EEC of
                                                                                  12 December 1991 on hazardous waste, and of Directive
                                                                                  94/62/EC of the European Parliament and Council of
(1) OJ C 102 of 8.4.2000.
                                                                                  20 December 1994 on packaging and packaging waste, and/or
                                                                                  by not informing the Commission thereof, the United Kingdom
                                                                                  of Great Britain and Northern Ireland has failed to fulfil its
                                                                                  obligations under Article 7 of Directive 75/442, as amended
                                                                                  by Directive 91/156, Article 6 of Directive 91/689 and,
                                                                                  leaving aside Gibraltar, under Article 14 of Directive 94/62.
                                                                            2.    Orders the United Kingdom of Great Britain and Northern
                  JUDGMENT OF THE COURT                                           Ireland to pay the costs.
                         (Second Chamber)                                   (1) OJ C 102 of 8.4.2000.
                          24 January 2002
in Case C-35/00: Commission of the European Communi-
ties v United Kingdom of Great Britain and Northern
                              Ireland (1)
                                                                                             JUDGMENT OF THE COURT
(Failure by a Member State to fulfil its obligations —
Environment — Waste — Directives 75/442/EEC,
  91/689/EEC and 94/62/EC — Waste management plans)                                                   (Fifth Chamber)
                           (2002/C 84/31)                                                             15 January 2002
                    (Language of the case: English)                         in Case C-43/00 (Reference for a preliminary ruling
                                                                            from the Vestre Landsret): Andersen og Jensen ApS v
                                                                                                   Skatteministeriet (1)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                            (Approximation of laws — Directive 90/434/EEC — Com-
                                                                            mon system of taxation applicable to mergers, divisions,
                                                                            transfers of assets and exchanges of shares — Transfer of
In Case C-35/00, Commission of the European Communities                               assets or of a branch of activity — Meaning)
(agents: R. B. Wainwright and L. Ström) v United Kingdom of
Great Britain and Northern Ireland (agent: R. Magrill, assisted
                                                                                                       (2002/C 84/32)
by D. Wyatt, QC): Application for a declaration that, by not
drawing up waste management plans complying with all the
provisions concerning waste of Council Directive 75/442/EEC                                     (Language of the case: Danish)
of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended
by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991
L 78, p. 32), of Council Directive 91/689/EEC of 12 December                (Provisional translation; the definitive translation will be published
1991 on hazardous waste (OJ 1991 L 377, p. 20), and of                                         in the European Court Reports)
European Parliament and Council Directive 94/62/EC of
20 December 1994 on packaging and packaging waste (OJ
1994 L 365, p. 10), and/or by not informing the Commission
thereof, the United Kingdom of Great Britain and Northern                   In Case C-43/00: reference to the Court under Article 234 EC
Ireland has failed to fulfil its obligations under Article 7 of             by the Vestre Landsret (Denmark) for a preliminary ruling in
Directive 75/442, as amended by Directive 91/156, Article 6                 the proceedings pending before that court between Andersen
of Directive 91/689 and Article 14 of Directive 94/62, the                  og Jensen ApS and Skatteministeriet on the interpretation of
Court (Second Chamber), composed of: N. Colneric, President                 Article 2(c) and (i) of Council Directive 90/434/EEC of 23 July
of the Chamber, R. Schintgen and V. Skouris (Rapporteur),                   1990 on the common system of taxation applicable to
Judges, Advocate General: A. Tizzano, Registrar: R. Grass, has              mergers, divisions, transfers of assets and exchanges of shares
given a judgment on 24 January 2002, in which it:                           concerning companies of different Member States (OJ 1990
 ---pagebreak--- 6.4.2002                 EN                      Official Journal of the European Communities                                              C 84/21
L 225, p. 1),the Court (Fifth Chamber), composed of: P. Jann                ruling in the proceedings pending before that court between
(Rapporteur), President of the Chamber, S. von Bahr, A. La                  Temco Service Industries SA and Samir Imzilyen, Mimoune
Pergola, L. Sevón and C.W.A. Timmermans, Judges, Advocate                  Belfarh, Abdesselam Afia-Aroussi, Khalil Lakhdar, intervener:
General: A. Tizzano, Registrar: H. von Holstein, Deputy                     General Maintenance Contractors SPRL (GMC), Buyle-Medros-
Registrar, has given a judgment on 15 January 2002, in which                Vaes Associates SA (BMV), formerly Weisspunkt SA, on the
it has ruled:                                                               interpretation of Articles 1(1) and 3(1) of Council Directive
                                                                            77/187/EEC of 14 February 1977 on the approximation of
1.    Article 2(c) and (i) of Council Directive 90/434/EEC of 23 July       the laws of the Member States relating to the safeguarding of
      1990 on the common system of taxation applicable to mergers,          employees’ rights in the event of transfers of undertakings,
      divisions, transfers of assets and exchanges of shares concerning     businesses or parts of businesses (OJ 1977 L 61, p. 26), the
      companies of different Member States must be interpreted as           Court (Sixth Chamber), composed of: F. Macken, President of
      meaning that there is no transfer of assets within the meaning        the Chamber, C. Gulmann, J.-P. Puissochet (Rapporteur),
      of that directive where the terms of a transaction are such that      R. Schintgen and J.N. Cunha Rodrigues, Judges, Advocate
      the proceeds of a significant loan contracted by the transferring     General: L.A. Geelhoed, Registrar: D. Louterman-Hubeau, Head
      company remain with that company and the obligations arising          of Division, has given a judgment on 24 January 2002, in
      from the loan are transferred to the company receiving the            which it has ruled:
      transfer. It is immaterial in this regard that the transferring
      company retains a small number of shares in a third company.
2.    It is for the national court to determine whether a transfer of
      assets involves an independent business within the meaning of
      Article 2(i) of Directive 90/434, that is to say, an entity           1.    Article 1(1) of Council Directive 77/187/EEC of 14 February
      capable of functioning by its own means, where the future cash-             1977 on the approximation of the laws of the Member States
      flow requirements of the company receiving the transfer must be             relating to the safeguarding of employees’ rights in the event of
      satisfied by a credit facility from a financial institution which           transfers of undertakings, businesses or parts of businesses must
      insists, in particular, that the shareholders of the company                be interpreted as applying to a situation in which a contractor
      receiving the transfer provide security in the form of shares               which has entrusted the contract for cleaning its premises to a
      representing the capital of that company.                                   first undertaking, which has that contract performed by a
                                                                                  subcontractor, terminates that contract and enters into a new
                                                                                  contract for the performance of the same work with a second
(1) OJ C 122 of 29.4.2000.                                                        undertaking, where the transaction does not involve any transfer
                                                                                  of tangible or intangible assets between the first undertaking or
                                                                                  the subcontractor and the second undertaking, but the second
                                                                                  undertaking has taken on, under a collective labour agreement,
                                                                                  part of the staff of the subcontractor, provided that the staff
                                                                                  thus taken on are an essential part, in terms of their number
                                                                                  and their skills, of the staff assigned by the subcontractor to the
                  JUDGMENT OF THE COURT                                           performance of the subcontract.
                           (Sixth Chamber)
                           24 January 2002
                                                                            2.    Article 3(1) of Directive 77/187 must be interpreted as
                                                                                  meaning that it does not preclude the contract or employment
in Case C-51/00 (Reference for a preliminary ruling                               relationship of a worker employed by the transferor on the date
from the Cour du Travail de Bruxelles): Temco Service                             of the transfer of the undertaking within the meaning of
Industries SA v Samir Imzilyen, Mimoune Belfarh, Abdes-                           Article 1(1) of that directive from continuing with the transferor
              selam Afia-Aroussi, Khalil Lakhdar (1)                              where that worker objects to the transfer of his employment
                                                                                  contract or employment relationship to the transferee.
(Directive 77/187/EEC — Safeguarding of employees’ rights
            in the event of transfers of undertakings)
                            (2002/C 84/33)
                     (Language of the case: French)                         (1) OJ C 122 of 29.4.2000.
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
In Case C-51/00: Reference to the Court under Article 234 EC
by the Cour du Travail de Bruxelles (Belgium) for a preliminary