CELEX: C2001/173/44
Language: en
Date: 2001-06-16 00:00:00
Title: Case C-145/01: Action brought on 29 March 2001 by the Commission of the European Communities against the Italian Republic

C 173/26                EN                   Official Journal of the European Communities                                      16.6.2001
      of the ECHR), to be interpreted as precluding national                  (b) in the case of undertakings declared in a state of ‘crisi
      rules which require a public broadcasting corporation, as                     aziendale’ (economic crisis), they do not provide, for
      a legal entity, to communicate, and a State body to collect                   the transfer of the workforce and of the debts arising
      and pass on, data on income for the purpose of publishing                     from an employment contract or relationship from
      the names and income of employees of a broadcasting                           the transferor to the transferee,
      corporation governed by public law?
                                                                              the Italian Republic has failed to fulfil its obligations
                                                                              under Council Directive 77/187/EEC (1) of 14 February
2.    If the Court of Justice of the European Communities rules               1977 on the approximation of the laws of the Member
      that the answer to the above question is in the affirmative:            States relating to the safeguarding of employees’ rights in
      Are the provisions precluding national rules of the kind                the event of transfers of undertakings, businesses or parts
      described above directly applicable, in the sense that a                of businesses, and in particular Articles 3 and 4 thereof;
      corporation obliged to disclose data may rely on them to
      prevent the application of conflicting national rules,
      and may not therefore raise, as against the employees             —     Order the Italian Republic to pay the costs.
      concerned by the disclosure, the fact that it is bound to
      comply with national rules?
                                                                        Pleas in law and main arguments
(1) OJ 1995 L 281, p. 31.                                               Article 47(5) and (6) of Law No 428 of 1990 provides for the
                                                                        non-application of the rules laid down by Directive 77/187, in
                                                                        the following circumstances:
                                                                        (a)   the undertaking concerned falls into one of the following
                                                                              categories:
                                                                              —     undertaking or production unit in respect of which
                                                                                    the Comitato Interministeriale per la Politica Indus-
                                                                                    triale (Inter-ministerial committee on industrial pol-
                                                                                    icy — CIPI) has declared a state of economic crisis
                                                                                    in terms of Law No 675 of 1977;
Action brought on 29 March 2001 by the Commission of
  the European Communities against the Italian Republic                       —     undertaking in bankruptcy;
                                                                              —     undertaking which has been the subject of a deed of
                          (Case C-145/01)                                           arrangement involving the transfer of goods;
                                                                              —     undertaking whose liquidation has been made
                          (2001/C 173/44)                                           public;
                                                                              —     undertaking under extraordinary liquidation;
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 29 March
2001 by the Commission of the European Communities,                     (b) an agreement has been concluded between workers’
represented by Antonio Aresu, acting as Agent.                                representatives and the employers, with regard to changes
                                                                              to working conditions or maintaining partial employ-
                                                                              ment.
The applicant claims that the Court should:
                                                                        The Commission takes the view that Italy lawfully disapplied
                                                                        Directive 77/187 in respect of undertakings declared bankrupt
—     Declare that, by failing maintaining in force the provisions      and those in liquidation. On the other hand, the derogation
      in Article 47(5) and (6) of Law No 428 of 29 December             for deeds of arrangement, extraordinary liquidation and the
      1990, in so far as they:                                          declaration of a state of economic crisis appear to be clearly
                                                                        contrary to Community law and the case-law of the Court of
                                                                        Justice.
      (a)   provided for the non-application of the automatic
            transfer of all employment contracts or relationships
            from the transferor to the transferee, in the case of       Directive 77/187 makes no provision for exemption from the
            undertakings which have been the subject of a deed          full effect of its provisions in respect of undertakings which
            of arrangement involving the transfer of goods or in        have been the subject of a deed of arrangement involving the
            cases of undertakings under extraordinary liqui-            transfer of goods or which are subject to extraordinary
            dation, where the undertakings themselves continue          administration, despite the Italian authorities views to the
            to carry on business after transfer;                        contrary.
 ---pagebreak--- 16.6.2001             EN                     Official Journal of the European Communities                                         C 173/27
So far as concerns those undertakings in respect of which the           preclude the application of the provision, created by the
CIPI has made a finding of economic crisis within the meaning           amendment to the Wiener Abgabenordnung (Vienna Tax
of Law No 675/77, it must be observed that Article 4a(3) of             Code, WAO) of 2 March 2000, LGBI. No 9/2000, and
Directive 77/187 provides, so far as undertakings in grave              applicable also to tax liabilities which arose before promulgation of
economic crisis are concerned, that Member States may apply             that amendment, in Paragraph 185(3) of the WAO, under which
paragraph 2(b) to any transfers where the transferor is in a            there is no claim to repayment where the economic burden of
situation of serious economic crisis, as defined by national law,       the duty was borne by a person other than the taxable person?
provided that the situation is declared by a competent public
authority and open to judicial supervision, on condition that
such provisions already exist in national law by 17 July 1998.          (1) OJ L 76 of 23.3.1992, p. 1.
According to a Joint Declaration of the Commission and the
Council on the adoption of Directive 98/50, only Italy had
legislation of that type. Furthermore, in that event also the
principle that workers’ rights should be protected remains
untouched. That principle is not observed by the contested
Italian legislation, which provides sic et simpliciter for the
disapplication of Directive 77/187.
                                                                        Action brought on 4 April 2001 by the Hellenic Republic
(1) OJ 1977 L 61, p. 26.                                                  against the Commission of the European Communities
                                                                                                  (Case C-148/01)
                                                                                                  (2001/C 173/46)
                                                                        An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of Justice of the European
                                                                        Communities on 4 April 2001 by the Hellenic Republic
Reference for a preliminary ruling from the Verwaltungs-                represented by Vasilios Kontolaimos, legal Adviser in the State
gerichtshof by order of that court of 23 March 2001 in                  Legal Service, and Khrisoula Tsiavou, Legal Agent of that
the case of (1) Weber’s Wine World HandelsgesmbH,                       Service, with an address for service in Luxembourg at the
(2) Ernestine Rathgeber, (3) Karl Schlosser, (4) Beta-                  Greek Embassy, 117 Val Sainte-Croix.
  Leasing GmbH v Abgabenberufungskommission Wien
                                                                        The applicant claims that the Court should:
                         (Case C-147/01)
                                                                        —     grant the application;
                         (2001/C 173/45)
                                                                        —     annul or, in the alternative, amend Commission Decision
                                                                              C(2001) 198 Final of 1 March 2001 excluding from
Reference has been made to the Court of Justice of the                        Community financing certain expenditure incurred by
European Communities by an order of the Verwaltungsgericht-                   the Member States under the Guarantee Section of the
shof (Administrative Court), Austria, of 23 March 2001, which                 European Agricultural Guidance and Guarantee Fund
was received at the Court Registry on 2 April 2001, for a                     (EAGGF).
preliminary ruling in the case of (1) Weber’s Wine World
HandelsgesmbH, (2) Ernestine Rathgeber, (3) Karl Schlosser,
(4) Beta-Leasing GmbH v Abgabenberufungskommission Wien                 Pleas in law and main arguments
on the following question:
                                                                        The Hellenic Republic contends that a financial correction has
Do Article 10 EC (formerly Article 5 of the EC Treaty) and              been imposed upon it unlawfully so far as concerns the
point 3 of the operative part of the judgment of the Court of           amount of the interest due for late payment of the additional
Justice of the European Communities of 9 March 2000 in Case             levy in the milk and milk products sector.
C-437/97 Evangelischer Krankenhausverein Wien v Abgaben-
berufungskommission Wien and Wein & Co. HandelsgesmbH,
formerly Ikera Warenhandelsgesellschaft mbH v Oberöster-                The Hellenic Republic contends that the proposed financial
reichische Landesregierung [2000] ECR I-1157, according to              correction should be annulled because the applicable legal
which Article 3(2) of Directive 92/12/EEC (1) may not be relied         provisions have been misinterpreted and the statement of
on in support of claims relating to a tax such as the duty on           reasons is insufficient.
alcoholic beverages paid or chargeable prior to the date of that
judgment, except by claimants who before that date initiated
legal proceedings or raised an equivalent administrative claim,