CELEX: C1996/388/08
Language: en
Date: 1996-12-21 00:00:00
Title: Action brought on 17 October 1996 by the Commission of the European Communities against the Federal Republic of Germany (Case C-344/96)

No C 388/4         \_ EN                Official Journal of the European Communities                                  21 . 12 . 96
Action brought on 16 October 1996 by the Kingdom of                        undertakings, and the competent bodies — Fogasa
Spain against the Commission of the European                               and the General Social Security Fund — have no
                         Communities                                       discretion whatsoever to apply, in such a way as to
                       Case C-342/96 )                                     favour specific undertakings, any other higher or
                                                                           lower rate of interest than that laid down by law
                        ( 96/C 388/07 )                                    for all statutory obligations .
An action against the Commission of the European                       — Since it is nowhere provided in the legislation that
Communities was brought before the Court of Justice of                     amounts over and above the statutory rate must be
the European Communities on 16 October 1996 by the                         paid into public funds in respect of deferred
Kingdom of Spain, represented by Paloma Plaza Garcia,                      payment of social security debts or repayment of
Abogado del Estado, of the Legal Service for Community                     wages paid out by Fogasa, Tubacex and Acerias de
Affairs, acting as Agent, with an address for service in                   Alava have not received any aid from any funds,
Luxembourg at the Spanish Embassy, 4-6 Boulevard                           whether of State or any other origin ( not even
Emmanuel Servais .                                                         employers' contributions which Fogasa receives
                                                                           under Article 3 of Royal Decree 505/85 and
                                                                           Article 33 of the Employees' Statute ), nor have any
The applicant claims that the Court should:                                sums which might lawfully belong to those public
                                                                           funds been prevented from being paid in, since the
—- annul Commission Decision C(96 ) 2384 final of                          statutory rules have been applied quite simply
    30 July 1996 concerning State aid granted to                           without any interference or exception, and no
    Compañía Española de Tubos por Extrusión SA at                         sums which by law should have been paid into
    Llodio (Álava ), and                                                   those funds have been taken away from them or
                                                                           prevented from being paid in.
— order the defendant to pay the costs.
                                                                       — There has been no distortion of competition .
Pleas in law and main arguments adduced in support:
                                                                       — Both the social security authorities and Fogasa
The contested decision finds that State aid has been
                                                                           have acted in the same way as a private creditor
                                                                           would have done in order to recover the debts
granted as a result of interest being applied at the                        owed to them .
statutory rate on the repayment agreements for sums paid
out by the Fondo de Garantfa Salarial (Wages Guarantee
Fund — Fogasa ) to the employees of Tubacex and its
subsidiary Acerias de Alava, and of those undertakings
being allowed to pay their social security debts by
deferred instalments, on the ground that the rate applied is
lower than the average rate on the private banking                 Action brought on 17 October 1996 by the Commission
market.                                                            of the European Communities against the Federal
                                                                                        Republic of Germany
— Infringement of Article 118 of the EC Treaty: in                                         ( Case C-344/96 )
    accordance with Article 118 of the EC Treaty, only the                                   ( 96/C 388/08 )
    Spanish legislature has the power to lay down Spanish
    social security legislation; Article 20 of Royal
    Legislative Decree 1/1994 of 20 June 1994, which
    forms part of that legislation, regulates deferment of         An action against the Federal Republic of Germany was
    payment and payment by instalments of debts in                 brought before the Court of Justice of the European
    respect of social security contributions and surcharges        Communities on 17 October 1996 by the Commission of
    thereon, providing that they are to bear interest at a         the European Communities, represented by Klaus-Dieter
    certain rate .                                                 Borchardt, a member of its Legal Service, with an address
                                                                   for service in Luxembourg at the office of Carlos Gomez
                                                                   de la Cruz, a member of the Commission's Legal Service,
    Also in accordance with Article 118 of the EC Treaty,          Wagner Centre, Kirchberg.
    only the Spanish legislature has the power to lay down
    Spanish employment law. The payment of employees'
    salaries by the Fogasa, the very existence of that body        The applicant claims that the Court should:
    and the manner in which it operates serve to provide
    wage guarantees and are statutory and mandatory
    conditions in employment contracts, and the governing          1 . declare that, by failing to take within the prescribed
    legislation forms an integral part of employment law.              period the measures necessary to comply with
                                                                       Directives 93/62/EEC f 1 ), 93/63/EEC ( 2), 93/64/
— Incorrect application of Article 92 of the EC Treaty:                EEC ( 3 ), 93/78/EEC (4 ), 93/79/EEC (5 ) and 94/3/
                                                                       EC ( 6 ), the Federal Republic of Germany has failed to
    — The application of the statutory interest rate                   fulfil its obligations under those Directives and under
        is a general measure which applies for all                     the EC Treaty;
 ---pagebreak--- 21 . 12 . 96                EN                    Official Journal of the European Communities                                    No C 388/5
2 . order the Federal Republic of Germany to pay the                         Action brought on 25 October 1996 by the Italian
      costs .                                                                      Republic against the Council of the European Union
                                                                                                        ( Case C-352/96 )
Pleas in law and main arguments adduced in support:                                                       ( 96/C 388/ 10 )
The mandatory character of the first paragraph of Article 5                  An action against the Council of the European Union was
and the third paragraph of Article 189 of the EC Treaty                      brought before the Court of Justice of the European
requires Member States to implement directives addressed                     Communities on 25 October 1996 by the Italian Republic,
to them in such a way that they take full effect by the                      represented by its Agent, Professor Umberto Leanza,
expiry of the prescribed period. That period expired on                      assisted by Danilo Del Gaizo, Avvocato dello Stato, with
5 May 1994 in relation to Directive 94/3/EC, and on                          an address for service in Luxembourg at the Italian
30 June 1994 in relation to the other Directives referred to                 Embassy, 5 Rue Marie-Adelaide .
above, without the Federal Republic of Germany having
taken the necessary measures.
                                                                             The applicant claims that the Court should declare null
                                                                             and void Council Regulation ( EC ) No 1522/96 of 24 July
f1)   OJ No   L 250, 7. 10. 1993 , p . 29 .                                  1996 (*) and, in particular, Articles 3 , 4 and 9 thereof.
(2)   OJ No   L 250, 7. 10 . 1993 , p . 31 .
(3)   OJ No   L 250, 7. 10 . 1993 , p . 33 .
(4 )  OJ No   L 256, 14 . 10 . 1993 , p . 19 .                               Pleas in law and main arguments adduced in support:
(5)   OJ No   L 256 , 14 . 10 . 1993 , p . 25 .
(6)   OJ No   L 32, 5 . 2 . 1994, p. 37.
                                                                             The Italian Republic maintains that, by adopting
                                                                             Regulation ( EC ) No 1522/96 and, in particular, Articles 3 ,
                                                                             4 and 9 thereof, the Council of the European Union has
                                                                             infringed GATT Article XXIV ( 6 ), Article 43 of the EC
                                                                             Treaty and the fundamental principle of proportionality. It
Reference for a preliminary ruling from the                                  also argues that the Commission infringed essential
Verwaltungsgerichtshof by order of that Court of                             procedural requirements: specifically, it failed to provide a
8 October 1996 in the case of Clean Car Autoservice                          proper statement of reasons and misused its powers.
           Ges.m.b.H. v. Landeshauptmann von Wien
                             ( Case C-3 50/96 )                              f 1 ) OJ No L 190, 31 . 7. 1996. p . 1 .
                               ( 96/C 388/09
Reference has been made to the Court of Justice
of the European Communities by - an order of                                 Action brought on 29 October 1996 by the Commission
the Verwaltungsgerichtshof (Administrative Court) of                                   of the European Communities against Ireland
8 October 1996 , which was received at the Court Registry                                               ( Case C-353/96 )
on 24 October 1996 , for a preliminary ruling in the case
of Clean Car Autoservice Ges.m.b.H. v. Landeshauptmann                                                      96/C 388/ 11 )
von Wien on the following questions:
                                                                             An action against Ireland was brought before the Court of
1 . Are Article 48 of the EC Treaty and Articles 1 to 3 of                   Justice of the European Communities on 29 October 1996
      Regulation ( EEC ) No 1612/68 (*) to be interpreted as                 by the Commission of the European Communities,
      meaning that employers in the host State also derive                   represented by Mr Richard Wainwright, Principal Legal
      therefrom the right to employ workers who are                          Adviser, acting as Agent, with an address for service in
      nationals of another Member State without being                        Luxembourg at the office of Mr Carlos Gomez de la Cruz,
       bound by conditions which — even if they do not                       member of its Legal Service, Centre Wagner, Kirchberg,
      depend on nationality — are typically linked with                      Luxembourg.
      nationality ?
                                                                             The applicant claims that the Court should:
2 . If employers of the host State have the right stated in
       Question 1 : Are Article 48 of the EC Treaty and                      — declare that, in failing to comply with the provisions
      Articles 1 to 3 of Regulation ( EEC ) No 1612/68 to be                       of Council Directive 77/62/EEC of 21 December 1976
      interpreted as meaning that a provision such as                              coordinating procedures for the award of public
      paragraph 39 ( 2 ) of the Gewerbeordnung 1994, under                         supply contracts ( J ), as amended by Directive 88/295/
      which the owner of a trade may appoint as manager                            EEC (2 ), and, in particular, in failing to publish its call
      for trade law purposes only a person whose residence                         for tender for the supply of fertilizers on behalf of the
      is in the host State (Austria ), is consistent therewith ?                   Irish Forestry Board ( Coillte Teoranta ) in the Official
                                                                                   Journal of the European Communities, Ireland has
                                                                                   failed to fulfil its obligations under the Treaty,
f 1 ) OJ, English Special Edition 1968 ( II ), p. 475 .
                                                                             — order Ireland to pay the costs .