CELEX: C1998/209/50
Language: en
Date: 1998-07-04 00:00:00
Title: Action brought on 4 May 1998 by the Grand Duchy of Luxembourg against the European Parliament and the Council of the European Union (Case C-168/98)

C 209/24              EN                 Official Journal of the European Communities                                     4.7.98
Chamber of the Tribunal Correctionel (Criminal Court),              Are Council Directives 92/83 (1) and 92/84 (2) on the
Arlon, of 2 April 1998, received at the Court Registry on           harmonisation of excise duties invalid from the point of
29 April 1998, for a preliminary ruling in the case of              view of the EC Treaty and in particular the second
MinisteÁre Public (Public Prosecutor's Office) against AndreÂ       paragraph of Article 95 of the Treaty, in that they
Mazzoleni Ð parties claiming damages: Eric Guillaume,
Michel Pedon, Christian Fondeur, Christian Simonin,                 Ð fix a minimum rate of tax on beer of ECU 1.87 per
JeÂrôme Canini; liable under civil law: Inter Surveillance              degree per hectolitre
Assistance SARL Ð on the following questions:
                                                                    Ð whereas they authorise taxation of wine by reference
Ð In Directive 96/71/EC of the European Parliament and                  solely to the volume, with a minimum rate of zero,
     of the Council of 16 December 1996 concerning the
     posting of workers in the framework of the provision           thus requiring Member States to raise the tax on beer to
     of services (1), does the term period of posting'             the said minimum rate and so bringing about the creation
     encompass the part-time period spent, whether                  of tax differentials liable to discriminate between wine and
     randomly or not, by a frontier-zone worker who                 beer?
     comes from an undertaking in a Member State,
     performing, in the course of days, weeks or a month, a         (1) OJ L 316, 31.10.1992, p. 21.
     part of his services in the adjacent territory or              (2) OJ L 316, 31.10.1992, p. 29.
     territories of one or more other Member States?
Ð Are Articles 59 and 60 of the EC Treaty to be
     interpreted as being infringed where a Member State,
     for overriding reasons relating to the public interest,
     requires any undertaking from another Member State             Reference for a preliminary ruling from the Oberste
     employing persons, even temporarily, on the territory          Gerichtshof, Vienna, by order of that court of 15 April
     of the first State to comply with its legislation or           1998 in the case of Westdeutsche Landesbank
     collective labour agreements relating to minimum               Girozentrale against Johannes Leon, acting as
     wages, where that interest is already protected by the         administrator of the assets of Grundstücks- und Baupro-
     rules of the State in which the service provider is            jektentwicklungsgesellschaft mbH in the insolvency
     established and workers there are already in a                             proceedings concerning that company
     comparable or similar position on the basis not solely
                                                                                            (Case C-167/98)
     of the legislation relating to minimum wages but of
     the overall position (impact of taxation, welfare                                       (98/C 209/49)
     protection in relation to illness, including under the
     obligatory supplementary insurance which applies in            Reference has been made to the Court of Justice of the
     France, and to industrial accidents, widowhood,                European Communities by order of the Oberste
     unemployment, retirement and death)?                           Gerichtshof (Supreme Court), Vienna, of 15 April 1998,
                                                                    received at the Court Registry on 30 April 1998, for a
Ð In the same context, put differently: are the temporary
                                                                    preliminary ruling in the case of Westdeutsche Landesbank
     national obligations set for employees to be
                                                                    Girozentrale against Johannes Leon, acting as
     understood as solely the minimum hourly rate of pay
                                                                    administrator of the assets of Grundstücks- und Baupro-
     without assessing the overall position as regards the
                                                                    jektentwicklungsgesellschaft mbH in the insolvency
     welfare protection enjoyed by employees who are
                                                                    proceedings concerning that company, on the following
     required in their work to move from one State to
                                                                    question:
     another?
                                                                    Does the refusal to allow a mortgage to be created to
(1) OJ L 18, 24.1.1997, p. 1.
                                                                    cover an existing foreign-currency debt (in this case in
                                                                    German marks (DM)) constitute a restriction on the
                                                                    movement of capital and payments compatible with
                                                                    Article 73(b) of the EC Treaty?
Reference for a preliminary ruling from the Tribunal de
Grande Instance, Foix, by judgment of that court of
21 April 1998 in the case of SocieÂteÂ Critouridienne de
       Distribution v. Receveur Principal des Douanes
                                                                    Action brought on 4 May 1998 by the Grand Duchy of
                        (Case C-166/98)
                                                                    Luxembourg against the European Parliament and the
                         (98/C 209/48)                                             Council of the European Union
                                                                                            (Case C-168/98)
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Tribunal de                                        (98/C 209/50)
Grande Instance (Regional Court), Foix (France), of
21 April 1998, which was received at the Court Registry             An action against the European Parliament and the
on 29 April 1998, for a preliminary ruling in the case of           Council of the European Union was brought before the
SocieÂteÂ Critouridienne de Distribution v. Receveur                Court of Justice of the European Communities on 4 May
Principal des Douanes on the following question:                    1998 by the Grand Duchy of Luxembourg, represented by
 ---pagebreak--- 4.7.98               EN                 Official Journal of the European Communities                                   C 209/25
Nicolas Schmit, Conseiler d'EÂtat, Director of International             Ð liberalises group practice, and also does so in
Economic Relations and Cooperation, acting as Agent,                         countries which did not authorise that form of
with an address for service in Luxembourg at the Ministry                    practice and that means of access, namely Italy
of Foreign Affairs, 6 Rue de la CongreÂgation.                               and Greece;
                                                                         Ð removes the obligation on migrants to acquire
The Grand Duchy of Luxembourg claims that the Court                          knowledge of the law of the host country.
should:
                                                                   Ð     Infringement of the duty to state reasons: The
(a) annul Directive 98/5/EC of the European Parliament                   contested directive offers no justification for the
     and of the Council (1) in its entirety, particularly                choice made by the Community legislature in placing
     Articles 2, 5 and 10 thereof, for infringement of the               on the same level, from the point of view of
     Treaty, omission of one of the required legal bases                 establishment, migrant lawyers practising under their
     and failure to state reasons,                                       original title and those opting for integration and to
                                                                         use the title of the host State. The third, fifth, ninth
                                                                         and tenth recitals are not a sufficient statement of
(b) order the defendants to pay the costs.                               reasons in that respect.
                                                                   (1) OJ L 77, 14.3.1998, p. 36.
Pleas in law and main arguments adduced in support:                (2) OJ L 19, 24.1.1989, p. 16.
Ð    Infringement of Article 52 of the EC Treaty: By not
     imposing any requirement for even the most minimal
     training in the law of the host State, Directive 98/5/
     EC establishes an unwarranted difference in
     treatment between nationals and migrants which                Reference for a preliminary ruling by the Cour d'Appel
     cannot be justified under Article 52 of the Treaty. In        Bruxelles (Ninth Chamber) by judgment of that court of
     reality, the contested directive extends to the system        30 April 1998 in the case of Sebago Inc. and S.A.
     of establishment the advantages enjoyed by providers             Ancienne Maison Dubois et Fils against S.A. G-B Unic
     of services' within the meaning of Article 59 of the                                (Case C-173/98)
     Treaty, which are by definition temporary. Such an
     extension constitutes a distortion of the freedom of                                   (98/C 209/51)
     establishment.
                                                                   Reference has been made to the Court of Justice of the
Ð    Infringement of the second sentence of Article 57(2)          European Communities by judgment of the Cour d'Appel
     of the EC Treaty: That sentence imposes the                   de Bruxelles (Court of Appeal, Brussels) of 30 April 1998,
     requirement of unanimity where harmonisation                  received at the Court Registry on 11 May 1998, in the
     amends the existing principles laid down by law               case of Sebago Inc. and S.A. Ancienne Maison Dubois et
     governing training and the conditions of access for           Fils against S.A. G-B Unic, for a preliminary ruling on the
     natural persons to the professions. The contested             following questions:
     directive seriously affects such principles in the great
     majority of Member States. It removes the need for a          Is Article 7(1) of the First Council Directive 89/104/EEC
     migrant lawyer to be qualified, even minimally, in the        of 21 December 1988 to approximate the laws of the
     purely national law of the host State and introduces          Member States relating to trade marks (OJ L 40 of
     an inordinate derogation from a legislative principle         11.2.1989, p. 1) to be interpreted as meaning that the
     fundamental to the legal profession, common to all            right conferred by the trade mark entitles its proprietor to
     the Member States, whereby the profession is to be            oppose the use of his trade mark in relation to authentic
     one in which access is reserved for persons duly              goods which have not been put on the market in the
     qualified in national law, or the equivalence of whose        European Economic Community (extended to Norway,
     qualifications has been recognised, with, where               Iceland and Liechtenstein by virtue of the Agreement of
     appropriate, proof of the acquisition of missing              2 May 1992 establishing the European Economic Area) by
     knowledge by means of the test provided for by                the proprietor or with his consent, where:
     Council Directive 89/48/EEC (2).
                                                                   Ð the goods bearing the trade mark come directly from a
     Moreover, the contested directive distorts the                    country outside the European Community or the
     conditions for access of natural persons, in that it:             European Economic Area,
     Ð authorises full practice of such persons in an              Ð the goods bearing the trade mark come from a
         established capacity under the home-country                   Member State of the European Community or the
         professional    title, which      was     previously          European Economic Area in which they are in transit
         impossible in the great majority of Member                    without the consent of the proprietor of the trade
         States;                                                       mark or his representative,