CELEX: C1996/031/12
Language: en
Date: 1996-02-03 00:00:00
Title: JUDGMENT OF THE COURT (Fifth Chamber) of 30 November 1995 in Case C-118/95: Commission of the European Communities v. Italian Republic (Failure by a Member State to fulfil its obligations - Directives 92/33/EEC and 92/34/EEC - Failure to transpose)

No C 31 /6          MEN                    Official Journal of the European Communities                                     3 . 2 . 96
     governing an archipelago forming part ofthe territory of               decision ordering expulsion before a competent
     that State require all petroleum product wholesalers                   authority has given its opinion.
     wishing to extend their activities to that part of the
     national territory to supply a certain number of islands
     in the archipelago, having regard to the problems of             2 . Article 9 (1 ) of Directive 64/221 /EEC does not preclude
     supplying insular regions.                                             the competent authority referred to in that provision
                                                                            from being appointed by the same administrative
                                                                            authority as takes the decision ordering expulsion,
2 . Such rules are compatible with Article 85, read in                      provided that the competent authority can perform its
     conjunction with the second paragraph ofArticle 5, and                 duties in absolute independence and is not subject to any
     with Article 30 of the EC Treaty.                                      control by the authority empowered to take the
                                                                            measures provided for in the Directive. It is for the
                                                                            national court to determine in each case whether those
3 . Article 102 (1 ) of the EC Treaty does not give rise to
     individual rights which the courts must protect.                       requirements have been met.
                                                                      ( 1 ) OJ No C 233 , 20 . 8 . 1994 .
(') OJ No C 202 , 23 . 7. 1994 .
              JUDGMENT OF THE COURT                                                   JUDGMENT OF THE COURT
                       ( Sixth Chamber )                                                        ( Fifth Chamber)
                    of 30 November 1995                                                    of 30 November 1995
in Case C-l 75/94 ( reference for a preliminary ruling from                   in Case C-l 18/95 : Commission of the European
the Court of Appeal ): The Queen v. Secretary of State for the                       Communities v. Italian Republic ( J )
       Home Department, ex parte John Gallagher ( ] )                 (Failure by a Member State to fulfil its obligations —
(Freedom of movement for persons — Derogations —                      Directives 92/33/EEC and 92/34/EEC — Failure to
Decisions concerning the control of foreign nationals —                                               transpose)
Decision ordering expulsion — Prior opinion of the                                                 ( 96/C 31 / 12 )
                     competent authority)
                          ( 96/C 31 / 11 )
                                                                                       (Language of the case: Italian)
               (Language of the case: English)
                                                                      (Provisional translation; the definitive translation will be
                                                                                 published in the European Court Reports)
In Case C-175/94 : reference to the Court under Article 177
of the EC Treaty by the Court of Appeal, London, for a
preliminary ruling in the proceedings pending before that             In Case C-l 18/95 : Commission of the European
court between The Queen and Secretary of State for the                Communities ( Agent: Eugenio de March ) v. Italian Republic
Home Department, ex parte John Gallagher — on the                     ( Agents : Umberto Leanza and Maurizio Fiorilli ) —
interpretation of Council Directive 64/22 1 /EEC of                   application for a declaration that, by failing to adopt within
25 February 1964 on the coordination of special measures              the prescribed period the laws, regulations and
concerning the movement and residence of foreign nationals            administrative provisions necessary to comply with Council
which are justified on grounds of public policy, public               Directive 92/33/EEC of 28 April 1992 on the marketing of
security or public health ( OJ, English Special Edition               vegetable propagating and planting material, other than
 1963-1964, p. 117 ) — the Court ( Sixth Chamber ),                   seed ( OJ 1992 , No L 157, p. 1 ) and Council Directive
composed of C. N. Kakouris, President of the Chamber,                  92/34/EEC of 28 April 1992 on the marketing of fruit plant
G. Hirsch, G. F. Mancini, F. A. Schockweiler and P. J. G.             propagating material and fruit plants intended for fruit
Kapteyn ( Rapporteur ), Judges; M. B. Elmer, Advocate                 production ( OJ 1992 , No L 157, p. 10 ), the Italian Republic
General; L. Hewlett, Administrator, for the Registrar, has            has failed to fulfil its obligations under the EC Treaty — the
given a judgment on 30 November 1995 , the operative part              Court ( Fifth Chamber ), composed of D. A. O. Edward,
of which is as follows :                                              President of the Chamber, J. -P. Puissochet, C. Gulmann,
                                                                      P. Jann and L. Sevon ( Rapporteur), Judges; G. Cosmas,
                                                                       Advocate General ; R. Grass, Registrar, gave a judgment on
 1 . Article 9 (I ) of Council Directive 64/221 /EEC of                30 November 1995 the operative part of which is as
     25 February 1964 on the coordination of special                   follows :
     measures concerning the movement and residence of
     foreign nationals which are justified on grounds of
     public policy, public security or public health must be           1 . By failing to adopt the laws, regulations and
     interpreted as meaning that, save in cases of urgency, it               administrative provisions necessary to comply with
     prohibits the administrative authority from taking a                    Council Directive 92/33/EEC of 28 April 1992 on the
 ---pagebreak--- 3 . 2 . 96             EN |                  Official Journal of the European Communities                                  No C 31 /7
      marketing of vegetable propagating and planting                   2 . The term 'establishment' appearing in Article 1 (1 ) (a) of
      material, other than seed and Council Directive                        the aforesaid directive must be understood as meaning,
      92/34/EEC of 28 April 1992 on the marketing of fruit                   depending on the circumstances, the unit to which the
      plant propagating material and fruit plants intended for               workers made redundant are assigned to carry out their
      fruit production, the Italian Republic has failed to fulfil            duties. It is not essential, in order for there to be an
      its obligations under Article 25 of Directive 92/33/EEC                'establishment', for the unit in question to be endowed
      and Article 26 of Directive 92/34/EEC.                                 with a management which can independently effect
                                                                             collective redundancies .
2 . The Italian Republic is ordered to pay the costs.
                                                                        (>) OJ No C 1 , 4 . 1 . 1994 .
(>) OJ No C 159, 24 . 6 . 1995 .
                                                                                       JUDGMENT OF THE COURT
                                                                                                  ( Fifth Chamber)
                JUDGMENT OF THE COURT
                         ( First Chamber )                                                    of 7 December 1995 )
                                                                        in Case C-472/93 ( reference for a preliminary ruling from
                      of 7 December 1995
                                                                        the Pretore di Lecce ): Luigi Spano and Others v. Fiat
    in Case C-449/93 ( reference for a preliminary ruling                    Geotech SpA and Fiat Hitachi Excavators SpA ( 1 )
           from the 0stre Landsret): Rockfon A/S v.                     (Safeguarding of employees ' rights in the event of transfers
             Specialarbejderforbundet i Danmark ( )                                               of undertakings)
(Collective redundancies — Article 1 of Directive                                                    ( 96/C 31 /14 )
75/129/EEC — Definition of 'establishment' — Company
                    forming part of a group)
                            ( 96/C 31 / 13 )                                            (Language of the case: Italian)
                 (Language of the case: Danish)                         (Provisional translation; the definitive translation will be
                                                                                 published in the European Court Reports)
(Provisional translation; the definitive translation will be            In Case C-472/93 : reference to the Court under Article 177
           published in the European Court Reports)
                                                                        of the EC Treaty by the Pretore di Lecce ( Magistrate's
                                                                        Court, Lecce ) (Italy ) for a preliminary ruling in the
In Case C-449/93 : reference to the Court under Article 177             proceeding pending before that court between Luigi Spano
of the EC Treaty from the 0stre Landsret ( Eastern Regional             and Others and Fiat Geotech SpA and Fiat Hitachi
Court ) ( Denmark ) for a preliminary ruling in the                     Excavators SpA on the interpretation of Council Directive
proceedings pending before that court between Rockfon A/S               77/187/EEC of 14 February 1977 on the approximation of
and Specialarbejderforbundet i Danmark — on the                         the laws of the Member States relating to the safeguarding of
interpretation of Article 1 of Council Directive 75/129/EEC             employees' rights in the event of transfers of undertakings,
of 17 February 1975 on the approximation of the laws of                 businesses or parts of businesses ( OJ 1977, No L 61 , p. 26 )
the Member States relating to collective redundancies ( OJ              — the Court ( Fifth Chamber ) composed of J. -P. Puissochet
1975 , No L 48 , p. 29 ) — the Court ( First Chamber ),                 ( Rapporteur ), acting as President of the Chamber, J. C.
composed of D. A. O. Edward ( Rapporteur ), President of                Moitinho de Almeida, C. Gulmann, P. Jann and L. Sevon,
the Chamber, P. Jann and L. Sevon, Judges; G. Cosmas,                   Judges; G. Cosmas, Advocate General; L. Hewlett,
Advocate General; H. A. Ruhl, Principal Administrator, for              Administrator, for the Registrar, has given a judgment on
the Registrar, has given a judgment on 7 December 1995 , in             7 December 1995, in which it rules :
which it rules :
                                                                        Council Directive 77/187/EEC of 14 February 1977 on the
1 . Article I (1 ) (a) of Council Directive 75/129/EEC of               approximation of the laws of the Member States relating to
      17 February 1975 on the approximation of the laws of              the safeguarding of employees ' rights in the event of
      the Member States relating to collective redundancies is          transfers of undertakings, businesses or parts of businesses
      to be interpreted as meaning that it does not preclude            is applicable to the transfer of an undertaking which under
      two or more interrelated undertakings in a group,                 Article 2 (5) (c) of Italian Law No 675 of 12 August 1977
      neither or none of which has decisive influence over the          has been declared to be in critical difficulties.
      other or others, from establishing a joint recruitment
      and dismissal department so that, in particular,                   (') OJ No C 43 , 12 . 2 . 1994 .
      dismissals on grounds of redundancy in one of the
      undertakings can take place only with that department's
      approval.