CELEX: C1998/041/08
Language: en
Date: 1998-02-07 00:00:00
Title: JUDGMENT OF THE COURT (Fifth Chamber) of 4 December 1997 in Case C-97/96 (reference for a preliminary ruling from the Oberlandesgericht Düsseldorf): Verband deutscher Daihatsu-Händler eV v. Daihatsu Deutschland GmbH (Company law - Annual accounts - Penalties for non-publication - Article 6 of the First Directive 68/151/EEC)

7.2.98               EN                  Official Journal of the European Communities                                      C 41/5
    concerning indirect taxes on the raising of capital, as                       JUDGMENT OF THE COURT
    most recently amended by Council Directive 85/303/
                                                                                          (Fifth Chamber)
    EEC of 10 June 1985, in order for charges levied on
    registration of public and private limited companies                                of 4 December 1997
    and on their capital being increased to be by way of
    fees or dues, their amount must be calculated solely on         in Case C-97/96 (reference for a preliminary ruling from
    the basis of the cost of the formalities in question. It        the Oberlandesgericht Düsseldorf): Verband deutscher
    may, however, also cover the costs of minor services             Daihatsu-Händler eV v. Daihatsu Deutschland GmbH (1)
    performed without charge. In calculating their
                                                                    (Company law Ð Annual accounts Ð Penalties for non-
    amount, a Member State is entitled to take account of
                                                                    publication Ð Article 6 of the First Directive 68/151/
    all the costs related to the effecting of registration,
                                                                                                EEC)
    including the proportion of the overheads which may
    be attributed thereto. Furthermore, a Member State                                      (98/C 41/08)
    may impose flat-rate charges and fix their amount for
    an indefinite period, provided that it checks at regular
    intervals that they continue not to exceed the average                        (Language of the case: German)
    cost of the registrations at issue.
                                                                     (Provisional translation; the definitive translation will be
                                                                             published in the European Court Reports)
2. Community law precludes actions for the recovery of
    charges levied in breach of Directive 69/335/EEC, as            In Case C-97/96: reference to the Court under Article 177
    amended, from being dismissed on the ground that                of the EC Treaty from the Oberlandesgericht Düsseldorf
    those charges were imposed as a result of an excusable          (Düsseldorf Higher Regional Court) (Germany), for a
    error by the authorities of the Member State inasmuch           preliminary ruling in the proceedings pending before that
    as they were levied over a long period without either           court between Verband deutscher Daihatsu-Händler eV
    those authorities or the persons liable to them having          and Daihatsu Deutschland GmbH Ð on the interpretation
    been aware that they were unlawful.                             of Article 6 of the First Council Directive 68/151/EEC of
                                                                    9 March 1968 on coordination of safeguards which, for
                                                                    the protection of the interests of members and others, are
                                                                    required by Member States of companies within the
                                                                    meaning of the second paragraph of Article 58 of the
                                                                    Treaty, with a view to making such safeguards equivalent
3. Community law, as it now stands, does not prevent a              throughout the Community (OJ, English Special Edition
    Member State which has not properly transposed                  1968 (I), p. 41) Ð the Court (Fifth Chamber), composed
    Directive 69/335/EEC, as amended, from resisting                of: C. Gulmann, President of the Chamber, M. Wathelet
    actions for the repayment of charges levied in breach           (Rapporteur), J. C. Moitinho de Almeida, D. A. O.
    thereof by relying on a limitation period under                 Edward and J.-P. Puissochet, Judges; G. Cosmas,
    national law which runs from the date on which the              Advocate-General; H. A. Rühl, Principal Administrator,
    charges in question became payable, provided that               for the Registrar, has given a judgment on 4 December
    such a period is not less favourable for actions based          1997, in which it has ruled:
    on Community law than for actions based on national
    law and does not render virtually impossible or
    excessively difficult the exercise of rights conferred by
                                                                    1. Article 6 of the First Council Directive 68/151/EEC of
    Community law.
                                                                        9 March 1968 on coordination of safeguards which,
                                                                        for the protection of the interests of members and
                                                                        others, are required by Member States of companies
                                                                        within the meaning of the second paragraph of
                                                                        Article 58 of the Treaty, with a view to making such
                                                                        safeguards equivalent throughout the Community,
4. Article 10 of Directive 69/335/EEC, as amended, in                   must be interpreted as precluding the legislation of a
    conjunction with Article 12 (1)(e) thereof gives rise to            Member State from restricting to members or creditors
    rights on which individuals may rely before national                of a company, the central works council or the
    courts.                                                             company's works council the right to apply for
                                                                        imposition of the penalty provided for by the law of
                                                                        that Member State in the event of failure by a
(1) OJ C 229, 2.9.1995.                                                 company to fulfil the obligations regarding disclosure
                                                                        of annual accounts laid down by the First Directive
                                                                        68/151/EEC.
                                                                    2. Since a directive cannot of itself impose obligations on
                                                                        an individual, and cannot therefore be relied upon as
 ---pagebreak--- C 41/6                EN                   Official Journal of the European Communities                                    7.2.98
     such against such a person, there is no need to                  Ð the public placement offices are manifestly unable to
     examine whether Article 6 of the First Directive 68/                 satisfy demand on the market for all types of activity,
     151/EEC has direct effect.                                           and
(1) OJ C 145, 18.5.1996.
                                                                      Ð the actual placement of employees by private
                                                                          companies is rendered impossible by the maintenance
                                                                          in force of statutory provisions under which such
                                                                          activities are prohibited and non-observance of that
                                                                          prohibition gives rise to penal and administrative
                                                                          sanctions, and
               JUDGMENT OF THE COURT
                        (Sixth Chamber)
                                                                      Ð the placement activities in question could extend to
                    of 11 December 1997                                   the nationals or to the territory of other Member
                                                                          States.
in Case C-55/96 (reference for a preliminary ruling from
the Corte d'Appello, Milan): Non-contentious proceedings
    brought before that court by Job Centre Coop. arl (1)             (1) OJ C 133, 4.5.1996.
(Freedom to provide services Ð Placement of employees
Ð Exclusion of private undertakings Ð Exercise of
                       official authority)
                          (98/C 41/09)
                                                                                     JUDGMENT OF THE COURT
                (Language of the case: Italian)
                                                                                             (Sixth Chamber)
                                                                                          of 11 December 1997
  (Provisional translation; the definitive translation will be        in Case C-246/96 (reference for a preliminary ruling to
          published in the European Court Reports)                    the Court by the Office of the Industrial Tribunals and the
                                                                      Fair Employment Tribunal): Mary Teresa Magorrian and
                                                                      Irene Patricia Cunningham against Eastern Health and
                                                                      Social Services Board, Department of Health and Social
In Case C-55/96: reference to the Court under Article 177                                       Services (1)
of the EC Treaty by the Corte d'Appello, Milan, Italy, for
a preliminary ruling in the non-contentious proceedings               (Equal pay for male and female workers Ð Article 119 of
(giurisdizione volontaria) brought before that court by Job           the EC Treaty Ð Protocol 2 annexed to the Treaty on
Centre Coop. arl Ð on the interpretation of Articles 48,              European Union Ð Occupational social security schemes
49, 55, 56, 59, 60, 62, 66, 86 and 90 of the EC Treaty Ð              Ð Exclusion of part-time workers from status conferring
the Court (Sixth Chamber) composed of: R. Schintgen,                  entitlement to certain additional pension benefits Ð Date
President of the Second Chamber, acting as President of               from which such benefits must be calculated Ð National
the Sixth Chamber, G. F. Mancini and P. J. G. Kapteyn                                     procedural time-limits)
(Rapporteur), Judges; B. Elmer, Advocate-General; L.
Hewlett, Administrator, gave a judgment on 11 December                                         (98/C 41/10)
1997, the operative part of which is as follows:
                                                                                      (Language of the case: English)
Public placement offices are subject to the prohibition
contained in Article 86 of the EC Treaty, so long as
application of that provision does not obstruct the
performance of the particular task assigned to them. A                In Case C-246/96: reference to the Court under Article 177
Member State which prohibits any activity as an                       of the EC Treaty by the Office of the Industrial Tribunals
intermediary between supply and demand on the                         and the Fair Employment Tribunal, Belfast, for a
employment market, whether as an employment agency or                 preliminary ruling in the proceedings pending before that
as an employment business, unless carried on by those                 court between Mary Teresa Magorrian, Irene Patricia
offices, is in breach of Article 90 (1) of the Treaty where it        Cunningham and Eastern Health and Social Services
creates a situation in which those offices cannot avoid               Board, Department of Health and Social Services, on the
infringing Article 86 of the Treaty. That is the case, in             interpretation of Article 119 of the EC Treaty and of
particular, in the following circumstances:                           Protocol 2 concerning Article 119 of that Treaty, annexed