CELEX: C2003/007/14
Language: en
Date: 2003-01-11 00:00:00
Title: Case C-373/02: Reference for a preliminary ruling by the Oberster Gerichtshof (Austria) by order of that Court of 17 September 2002 in the appeal between Sakir Öztürk and Pensionsversicherungsanstalt der Arbeiter

C 7/8                  EN                     Official Journal of the European Communities                                      11.1.2003
     (b) German legislation under Article 13(2)(f) of Regu-                          bb) If the answer to Question 3(c)(aa) is affirmative:
           lation 1408/71?
                                                                                           does the first sentence of Article 71(1)(b)(ii) of
                                                                                           Regulation 1408/71 also mean that the last
2.   If the answer to Question 1(a) is affirmative:
                                                                                           employment completed in the territory of a
                                                                                           Member State other than the competent State
     (a)   does compulsory national service undertaken in                                  is to be taken into account for the purposes of
           Spain constitute ‘last employment in the territory of                           benefits to unemployed persons as if it had
           a Member State other than the competent State’                                  been completed in the State of residence,
           within the meaning of Article 71(1) of Regulation                               without regard to the requirements stated in
           1408/71?                                                                        Article 67 of Regulation 1408/71? (as per
                                                                                           Question 2(b)).
     (b) If the answer to Question 2(a) is affirmative:
                                                                         4.    If the period of Spanish compulsory national service
           does the first sentence of Article 71(1)(b)(ii) of
                                                                               cannot be taken into account under Articles 71 or 67 of
           Regulation 1408/71 also mean that the last employ-                  Regulation 1408/71 for the purposes of the claimant’s
           ment completed in the territory of a Member State
                                                                               entitlement to benefit under German unemployment
           other than the competent State is to be taken into
                                                                               insurance, is there any such entitlement under the
           account for the purposes of benefits to unemployed
                                                                               principle of equality of treatment in Article 3 of Regu-
           persons as if it had been completed in the State of
                                                                               lation 1408/71 or under any other general provisions of
           residence, without regard to the requirements stated                European law?
           in Article 67 of Regulation 1408/71?
     c)    If the answer to Question 2(b) is negative:                   (1 ) OJ L 149 of 05.07.1971, p. 2.
                                                                         (2 ) OJ L 230 of 22.08.1983, p. 6.
           in what circumstances is a period of national                 (3 ) OJ L 206 of 29.07.1991, p. 2.
           service that, under national (Spanish) law, does not
           constitute a period of insurance for unemployment
           insurance purposes or is not treated as such, to be
           considered a period of employment completed as
           an employed person under the legislation of another
           Member State in accordance with Article 67(1) of
           Regulation 1408/71?
                                                                         Reference for a preliminary ruling by the Oberster
3.   If the answer to Question 1(b) is affirmative:                      Gerichtshof (Austria) by order of that Court of 17 Septem-
                                                                         ber 2002 in the appeal between Sakir Öztürk and Pen-
     a)    has a person whose last period of insurance in                            sionsversicherungsanstalt der Arbeiter
           Germany came to an end more than one year
           previously, after which he carried out compulsory
           national service in Spain for nine months, ‘com-                                        (Case C-373/02)
           pleted lastly’ periods of insurance under German law
           within the meaning of Article 67(3) of Regulation                                         (2003/C 7/14)
           1408/71
     b)    If the answer to Question 3(a) is affirmative:
                                                                         Reference has been made to the Court of Justice of the
           in what circumstances is a period of national                 European Communities by order of the Oberster Gerichtshof
           service that, under national (Spanish) law, does not          (Austria) (Supreme Court) of 17 September 2002, received at
           constitute a period of insurance for unemployment             the Court Registry on 17 October 2002, for a preliminary
           insurance purposes or is not treated as such, to be           ruling in the appeal between Sakir Öztürk and Pensionsversich-
           considered a period of employment completed as                erungsanstalt der Arbeiter on the following questions:
           an employed person under the legislation of another
           Member State in accordance with Article 67(1) of
                                                                         1.    Is the law concerning the association between the Euro-
           Regulation 1408/71? (as per Question 2(c)).
                                                                               pean Economic Community and Turkey (in particular
                                                                               Article 9 of the Agreement establishing an Association
     c)    If Article 67(1) of Regulation 1408/71 should not                   between the European Economic Community and Turkey
           apply to the claimant (Questions 3(a) and (b)):                     of 12 September 1963) to be interpreted as precluding a
                                                                               rule of a Member State which requires inter alia, as a
           aa) does compulsory national service undertaken                     condition of entitlement to an early old-age pension in
                 in Spain constitute ‘last employment in the                   the event of unemployment, that the worker concerned
                 territory of a Member State other than the                    must have drawn a cash benefit on account of his
                 competent State’ within the meaning of                        unemployment from the unemployment insurance
                 Article 71(1) of Regulation 1408/71? (as per                  scheme of that Member State within a certain period
                 Question 2(a)).                                               prior to the qualifying date?
 ---pagebreak--- 11.1.2003               EN                    Official Journal of the European Communities                                          C 7/9
If the answer to the first question is in the negative:                  right in rem), being revoked on the sole ground that, as a result
                                                                         of a legislative amendment which had not yet taken effect at
                                                                         the time at which the abovementioned transaction was carried
2.    Is Article 45(1) of Regulation (EEC) No 1408/71 of the
                                                                         out, that transaction is regarded with retroactive effect as an
      Council of 14 June 1971 (1) on the application of social
                                                                         exempt transaction establishing no right to deduct?
      security schemes to employed persons, to self-employed
      persons and to members of their families moving within
      the Community, as amended and updated by Council
      Regulation (EC) No 118/97 of 2 December 1996 (2), to
      be interpreted as precluding a rule of a Member State
      which requires inter alia, as a condition of entitlement to
      an early old-age pension in the event of unemployment,
      that the worker concerned must have drawn a cash
      benefit on account of his unemployment from the
      unemployment insurance scheme of that Member State                 Reference for a preliminary ruling by the Raad van State
      within a certain period prior to the qualifying date?              — IXe Kamer (Belgium) by judgment of that Court of
                                                                         18 October 2002 in the case of NV Firma Leon van Parys
                                                                          against Belgisch Interventie- en Restitutiebureau (BIRB)
( 1) OJ L 149 [1971], p. 2.
( 2) OJ L 28 [1997], p. 1.
                                                                                                   (Case C-377/02)
                                                                                                    (2003/C 7/16)
                                                                         Reference has been made to the Court of Justice of the
Reference for a preliminary ruling by the Hoge Raad der                  European Communities by judgment of the Raad van State
Nederlanden by judgment of that Court of 18 October                      (Council of State) of 18 October 2002, received at the Court
2002 in the case of Stichting ‘Goed Wonen’ against                       Registry on 21 October 2002, for a preliminary ruling in the
                 Staatssecretaris van Financiën                          case of NV Firma Leon van Parys against Belgisch Interventie-
                                                                         en Restitutiebureau (BIRB) (Belgian Intervention and Refund
                                                                         Bureau) on the following questions:
                           (Case C-376/02)
                                                                         1.    Do Council Regulation (EEC) No 404/93 (1) of 13 Febru-
                                                                               ary 1993 on the common organisation of the market in
                            (2003/C 7/15)                                      bananas, as amended by Council Regulation (EC)
                                                                               No 1637/98 ( 2) of 20 July 1998, Commission Regulation
                                                                               (EC) No 2362/98 (3) of 28 October 1998 laying down
                                                                               detailed rules for the implementation of Council Regu-
                                                                               lation (EEC) No 404/93 regarding imports of bananas into
Reference has been made to the Court of Justice of the                         the Community, Commission Regulation (EC) No 2806/
European Communities by judgment of the Hoge Raad der                          98 ( 4) of 23 December 1998 on the issuing of import
Nederlanden (Supreme Court of the Netherlands) of 18 Octo-                     licences for bananas under the tariff quotas and for
ber 2002, received at the Court Registry on 21 October 2002,                   traditional ACP bananas for the first quarter of 1999 and
for a preliminary ruling in the case of Stichting ‘Goed                        on the submission of new applications, Commission
Wonen’ against Staatssecretaris van Financiën on the following                 Regulation (EC) No 102/99 ( 5) of 15 January 1999 on the
question:                                                                      issuing of import licences for bananas under the tariff
                                                                               quotas and for traditional ACP bananas for the first
                                                                               quarter of 1999 (second period) and Regulation (EC)
                                                                               No 608/1999 (6) of 19 March 1999 on the issuing of
Under circumstances such as those set out at paragraph 6.3.4.
                                                                               import licences for bananas under the tariff quotas and
above, do Articles 17 and 20 of the Sixth Directive or
                                                                               for traditional ACP bananas for the second quarter of
the European law principles of the protection of legitimate
                                                                               1999 and on the submission of new applications infringe
expectations and of legal certainty preclude — in a case not
                                                                               Article I, Article XIII:1 and Article XIII:2(d) of GATT
involving fraud or abuse or any question of a change in
                                                                               1994, taken separately or together, inasmuch as they:
planned use, as mentioned in paragraphs 50 and 51 of the
judgment of the Court of Justice in Schloßstraße — the
adjustment of VAT not deducted by a taxable person which he                    —     introduce to the benefit of twelve countries named
paid in respect of (immovable) property which is supplied to                         in the annex to Regulation No 1637/98 a joint
him and which he originally intended for letting (which is not                       quota of a maximum of 857 700 kg [sic] of bananas
subject to VAT), but subsequently used for a transaction                             (‘traditional ACP bananas’) and, moreover, in that
subject to VAT (in the present case, the grant of a usufructuary                     that quota does not accord with a distribution of