CELEX: C1997/228/22
Language: en
Date: 1997-07-26 00:00:00
Title: Appeal brought on 9 June 1997 by the Council of the European Union against the judgment delivered on 16 April 1997 by the First Chamber of the Court of First Instance of the European Communities in Case T-80/96 between Ana Maria Fernandes Leite Mateus and Council of the European Union (Case C-218/97 P)

No C 228/ 10            EN                   Official Journal of the European Communities                                         26 . 7. 97
— order the Portuguese Republic to pay the costs.                       1 . Is Article 13 ( A) ( 1 ) of the Sixth Directive (') to be
                                                                             interpreted as meaning that two natural persons ( i.e.
Pleas in law and main arguments adduced in support:                          individuals) who carry on business in common as
                                                                             partners        cannot         claim     exemption        under
Under the third paragraph of Article 189 of the EC Treaty,                   subparagraph ( b ) in the circumstances summarized in
a directive is to be binding, as to the result to be achieved,               the schedule to these questions and on the assumptions
upon each Member State to which it is addressed. Under                       that :
Article 395 and Annex XXXVI of the Act concerning the
conditions of accession of the Portuguese Republic to the                    ( i ) the business consists of medical care and closely
                                                                                    related activities:
European Communities, Directive 75/440/EEC is
applicable in Portugal as from 1 January 1989; the period                           and
for the entry into force of the necessary provisions of
domestic law thus expired on that date . Despite the                         ( ii ) they are 'duly recognized' and their activities are
prescribed periods having expired, the Portuguese                                   of a similar nature to those provided by ' hospitals'
Republic has nevertheless failed to adopt a systematic plan                         and/or     'centres     for   medical  treatment        or
of action including a timetable for the improvement of                              diagnosis '?
surface water, especially that falling within category A3 .
(') OJ No L 194, 25 . 7 . 1975 , p . 26 .
                                                                             In particular, are            the  partners  excluded      from
                                                                             exemption because :
                                                                             ( a ) they do not constitute a ' body' governed by public
                                                                                    law;
                                                                              ( b ) their activities are not undertaken under social
Reference for a preliminary ruling by the Tribunale Civile                          conditions comparable to those applicable to
di Bologna, Sezione Lavoro, by order of that court of                               bodies governed by public law ?
16 April 1997 in the case of Barbara Bellone against
                          Yokohama SpA
                                                                        2 . Is Article 13 (A) ( 1 ) of the Sixth Directive to be
                         ( Case C-215 /97 )
                                                                             interpreted as meaning that two natural persons
                            ( 97/C 228/20 )                                   ( i.e. individuals ) who carry on business in common
                                                                              as partners cannot claim exemption under
Reference has been made to the Court of Justice of the                        subparagraph (g) in the circumstances summarized in
European Communities by order of the Tribunale Civile di                      the schedule to these questions and on the assumption
Bologna, Sezione Lavoro ( District Civil Court of Bologna,                    that the services they supply are 'closely linked to
Employment Division ) of 16 April 1997, received at the                       welfare and social security work, including those
 Court Registry on 9 June 1997, for a preliminary ruling in                   supplied by old people's homes'?
the case of Barbara Bellone v. Yokohame SpA on the
following question:                                                     (') Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                            harmonization of the laws of the Member States relating to
                                                                            turnover taxes — Common system of value added tax :
Is Directive 86/653/EEC (') compatible with Articles 2 and                  uniform basis of assessment ( OJ No L 145 , 13 . 6 . 1977 , p. 1 ).
 9 of Italian Law No 204 of 3 May 1985 , which make the
 validity of agency contracts conditional upon commercial
 agents being entered in the appropriate register ?
 (') OJ No L 382 , 31 . 12 . 198 , p . 17 .
                                                                        Appeal brought on 9 June 1997 by the Council of the
                                                                        European Union against the judgment delivered on
                                                                         16 April 1997 by the First Chamber of the Court of First
                                                                        Instance of the European Communities in Case T-80/96
                                                                         between Ana Maria Fernandes Leite Mateus and Council
 Reference for a preliminary ruling by the VAT and Duties
 Tribunal, Belfast, by direction of that court of 4 June                                         of the European Union
 1997, in the case of Jennifer Gregg and Mervyn Gregg                                              ( Case C-218/97 P )
      against the Commissioners of Customs and Excise                                                 ( 97/C 228/22 )
                          ( Case C-216/97)
                             ( 97/C 228/21 )
                                                                         An appeal against the judgment delivered on 16 April
                                                                         1997 by the First Chamber of the Court of First Instance
 Reference has been made to the Court of Justice of the                  of the European Communities in Case T-80/96 between
 European Communities by direction of the VAT and                        Ana Maria Fernandes Leite Mateus and Council of the
 Duties Tribunal, Belfast, of 4 June 1997, which was                     European Union was brought before the Court of Justice
 received at the Court Registry on 9 June 1997, for a                    of the European Communities on 9 June 1997 by the
 preliminary ruling in the case of Jennifer Gregg and                    Council of the European Union, represented by Amadeu
 Mervyn Gregg against the Commissioners of Customs and                   Lopes Sabino, Diego Canga Fano and Therese Blanchet, of
 Excise , on the following questions :                                   its Legal Servie, with an address for service in
 ---pagebreak--- 26 . 7. 97              EN                  Official Journal of the European Communities                                  No C 228/ 11
Luxembourg at the office of Alessandro Morbilli,                       der Nederlanden ( Supreme Court of the Netherlands ) of
European Investment Bank, 100 Boulevard Konrad                         6 June 1997, received at the Court Registry on 12 June
Adenauer, Kirchberg.                                                   1997, for a preliminary ruling in the case of B. V.
                                                                       Maatschappij Drijvende Bokken, formerly Bonn & Mees,
The appellant claims that the Court should:                            against Stichting Pensioenfonds voor de Vervoer- en
                                                                       Flavenbedrijven on the following questions:
— set aside the judgment of the Court of First Instance of
      16 April 1997 in Case T-80/96 Ana Maria Fernandes                ( a ) Is an occupational pension fund such as the Stichting
      Leite Mateus v. Council of the European Union,                         Pensioenfonds voor de Vervoer- en Havenbedrijven, to
                                                                             which all or one or more specified groups of
                                                                             employees in the relevant sector are obliged to be
— uphold the contentions put forward by the Council at                       affiliated by virtue of and in accordance with the
      first instance, namely:                                                WBPF (Wet betreffende Verplichte Deelneming in een
      — that the action should be dismissed, and
                                                                             Bedrijfspensioenfonds ( Law on compulsory affiliation
                                                                             to an occupational pension fund )), to be regarded as
      — that the applicants should be ordered to pay the                     an undertaking within the meaning of Articles 85 , 86
           costs ,
                                                                             or 90 of the EC Treaty ?
— make an appropriate order as to the costs of                         ( b ) Where a number of organizations which the
      proceedings before the Court of Justice.                               Minister subsequently regards as being sufficiently
                                                                             representative of the employers' associations and trade
                                                                             unions in a particular sector, within the meaning of
Pleas in law and main arguments adduced in support:                          the first paragraph of Article 3 of the WBPF, apply to
                                                                             the Minister pursuant to that provision for affiliation
The contested judgment infringes the legal framework laid                    to a particular pension fund within the meaning of
down by the notice of competition :                                          that Law to be made compulsory, is that joint action
                                                                             on the part of those organizations to be regarded as an
Infringement of the special conditions for admission to the                  agreement between undertakings, a decision by
competition: as may be seen from a reading of the                            associations of undertakings or a concerted practice
contested judgment, the applicant in Case T-80/96                            within the meaning of Article 85 ( 1 ) of the EC Treaty
submitted only a certificate as evidence of her professional                 which, within the meaning of that Treaty provision, ( i )
experience; she did not produce either a contract or a                       may affect trade between Member States, and ( ii ) has
letter of engagement as required by the notice of                            as its object or effect the prevention, restriction or
competition ( reproduced in paragraph 3 of the judgment).                    distortion of competition within the common market ?
That argument was put forward in the written stage and
pointed out on several occasions during the oral part, but             (c ) Is compulsory affiliation as described above to be
no mention was made of it in the judgment,                                   regarded as a measure which may render ineffective
                                                                             the competition rules applicable to undertakings, or, at
( in the alternative ) error in law with regard to the scope of              least, as a measure by which a Member State requires
the concept of 'first Escrituraria',                                         or favours the adoption of agreements contrary to
                                                                             Article 85 or reinforces their effects, or is that the case
                                                                             only in certain circumstances and, if so, in what
( in the alternative ) error in law with regard to the                       circumstances ?
interpretation of the candidature,
                                                                       ( d ) If question ( C ) is to be answered in the negative, are
( in the alternative ) the contested judgment was wrong to                   there other circumstances which may render such
find that the selection board had committed a manifest                       compulsory affiliation incompatible with the
error of assessment regarding professional experience .                      provisions of Article 90 of the EC Treaty and, if so,
                                                                             what circumstances ?
                                                                       ( e ) Can such compulsory affiliation be regarded as the
                                                                             grant to an occupational pension fund of an exclusive
                                                                             right within the meaning of Article 90 ( 1 ) of the EC
Reference for a preliminary ruling from the Hoge Raad                        Treaty, and is such a pension fund placed as a result in
der Nederlanden by judgment of that court of 6 June                          a dominant position which it abuses merely by
1997 in the case of B. V. Maatschappij Drijvende Bokken,                     exercising that exclusive right, in particular on the
formerly Bonn & Mees, against Stichting Pensioenfonds                        ground that such compulsory affiliation may affect
               voor de Vervoer- en Havenbedrijven                            trade between Member States and the provision of
                         ( Case C-2 19/97 )                                  services is limited, contrary to subparagraph ( b )
                           ( 97/C 228/23                                     of the second paragraph of Article 86, to the
                                                                             detriment of compulsorily affiliated undertakings and/
                                                                             or employees ? Alternatively, can such compulsory
Reference has been made to the Court of Justice of the                       affiliation create a situation in which a pension fund is
European Communities by judgment of the Hoge Raad                            induced to commit such an abuse or is at least placed