CELEX: C1997/181/02
Language: en
Date: 1997-06-14 00:00:00
Title: Action brought on 17 March 1997 by the Kingdom of the Netherlands against the Council of the European Union (Case C-110/97)

14 . 6 . 97           EN                   Official Journal of the European Communities                                No C 181 / 1
                                                                    I
                                                             (Information)
                                                 COURT OF JUSTICE
                                                          COURT OF JUSTICE
                JUDGMENT OF THE COURT                                  an undertaking which took place before the Directive had
                        (Third Chamber)                                begun to produce legal effects in the Member State
                                                                       concerned.
                        of 17 April 1997
in Case C-336/95 ( reference for a preliminary ruling from             (') OJ No C 351 , 30 . 12 . 1995 .
the Juzgado de lo Social N° 16, Barcelona ): Pedro Burdalo
     Treveio and Others v. Fondo de Garantía Salarial ( 1 )
 (Directive 77/187/EEC — Transfers of undertakings —
Experience taken into account by a guarantee institution               Action brought on 17 March 1997 by the Kingdom of the
             for calculating redundancy payments)                         Netherlands against the Council of the European Union
                          ( 97/C 181 /01 )                                                     ( Case C-l 10/97 )
                                                                                                  ( 97/C 181 /02 )
                 (Language of the case: Spanish)
                                                                       An action against the Council of the European Union was
                                                                       brought before the Court of Justice of the European
                                                                       Communities on 17 March 1997 by the Kingdom of the
  (Provisional translation; the definitive translation will be
                                                                       Netherlands, represented by Marc Fierstra , acting as
           published in the European Court Reports)
                                                                       Agent.
In Case C-336/95 : reference to the Court under Article 177
                                                                       The applicant claims that the Court should :
of the EC Treaty by the Juzgado de lo Social N° 16 , Barce­            — annul Council Regulation ( EC ) No 304/97 of
lona ( Spain ) for a preliminary ruling in the proceedings                  17 February 1997 introducing safeguard measures in
pending before that court between Burdalo Trevejo and                      respect of imports of rice originating in the overseas
Others     and    Fondo   de   Garanti'a   Salarial —    on  the
                                                                           countries and territories ('),
interpretation of Article 1 ( 1 ) and the second
subparagraph of Article 3 ( 3 ) of Council Directive 77/187/          — order the Council to pay the costs of the proceedings .
EEC of 14 February 1977 on the approximation of the
laws of the Member States relating to the safeguarding of              Pleas in law and main arguments adduced in support:
employees' rights in the event of transfers of undertakings,
businesses or parts of business ( OJ No L 61 , 5 . 3 . 1977,          — Breach of Article 109 ( 1 ) of Council Decision 91 /482/
p. 26 ) — the Court (Third Chamber ), composed of J. C.                    EEC of 25 July 1991 on the association of the
Moitinho de Almeida , President of the Chamber, C.                         overseas countries and territories with the European
Gulmann and J. -P. Puissochet ( Rapporteur ), Judges; G.                   Economic Community (2 ) ( hereafter referred to as 'the
Cosmas, Advocate-General; R. Grass, Registrar, has given                   OCT Decision '): in the first place, it is wrongly
a judgment on 17 April 1997, in which it has ruled:                        assumed    that    Article     109  of the OCT Decision
                                                                           provides authorization for taking safeguard measures
                                                                           by reason of the scale or price of products imported
Council Directive 77/187/EEC of 14 February 1977 on                        from the OCT; second, it is patently incorrect to speak
the approximation of the laws of the Member States                         of rice originating in the OCT being imported at such
relating to the safeguarding of employees ' rights in the                  low prices and in such large quantities as to cause an
event of transfers of undertakings, businesses or parts of                 actual or potential distortion of the Community
businesses cannot be relied on in relation to a transfer of                market in rice .
 ---pagebreak--- No C 181 /2             | EN I                 Official Journal of the European Communities                                          14 . 6 . 97
— Breach of Article 109 (2 ) of the OCT Decision: the                     Reference for a preliminary ruling by the Bayerisches Ver­
      contested regulation primarily protects the exportation             waltungsgericht Regensburg by order of that court of
      to the Community of rice from non-member countries,                 13 March 1997 in the case of Willi Burstein against Frei­
      whereas the order of preference EC-OCT-ACP follows                                               staat Bayern
      from the OCT Decision, in conjunction with Council                                            ( Case C-127/97
      Regulation ( EEC ) No 715/90; second, both the
       Commission and the Council have failed to keep track                                            97/C 181 /03
       of the consequences which this decision has for the
       OCT and the areas of industry most affected; third,
      the    Commission       and the      Council have   failed to       Reference has been made to the Court of Justice of
      conduct any investigation into less restrictive safeguard           the European Communities by order of the Bayerisches
       measures. Article 109 ( 2 ) is also breached by reason of          Verwaltungsgericht ( Bavarian Administrative Court),
      the fact that Article 3 ( 4 ) of Regulation ( EC ) No 304/          Regensburg, of 13 March 1997, received at the Court
       97 provides that the amount of the security in respect             Registry on 28 March 1997, for a preliminary ruling in
       of the import licences is to be equal to the customs               the case of Willi Burstein v. Freistaat Bayern on the
       duty applicable on the date on which the application               following questions:
      was lodged, and thus bears no relation to the security
       lodged pursuant to Regulation ( EC ) No 1162/95 ( in
      particular Article 10 ) or to that which must be lodged             A. Is Council Directive 91 /173/EEC ( ] ) of 21 March 1991
       pursuant to Article 4 (2 ) of Regulation ( EC ) No 1522/                to be interpreted as meaning that Member States are
       96 .                                                                    bound only in relation to the prohibition on
                                                                               authorizing the use of pentachlorophenol and its salts
                                                                               and esters in concentrations equal to or greater than
                                                                               0,1 % by mass in substances or preparations placed on
— Misuse of powers : as soon as the OCT Decision                               the market, whereas they may set limit values
       resulted in the development of trade between the OCT                    independently in respect of products which have been
       and the Community and industry within the OCT                           treated with pentachlorophenol ?
       utilizing the opportunities provided by the OCT
      Decision began to expand, the Community attempted
       to counteract these results . The efforts to thwart the            B. If the answer to Question A is in the negative:
       results contemplated by the OCT Decision have not so
       far led to a complete cessation of rice exports to the
       Community. The taking of safeguard measures can still                   Does Directive 91 /173/EEC prohibit a more stringent
       achieve that end without any need for the Council to                    national provision, which was in force before the
       take an unanimous decision for the purpose, such as                     directive was issued, from being applied until the
      would indeed be necessary for a decision to amend the                    Commission takes a decision pursuant to the second
       OCT Decision .                                                          subparagraph of Article 100a (4 ) of the EC Treaty ?
                                                                          C. If the answer to Question B is in the affirmative :
— Breach of Annex IV to the OCT Decision : if the
       Council adopts a new decision (Article 1 ( 7) of
      Annex IV), it must also to that end conduct the                          May that national provision            be applied as from the
       required investigation and itself make the necessary                   time when it is confirmed by           the Commission, even if
       determination . The earlier Commission decision is                      the Commission 's decision is          subsequently challenged
       revised in full and replaced . The Council bears full                   before the Court of Justice          and declared void as a
                                                                               result ?
       responsibility for the new decision. In the present case,
       the Council in fact failed to conduct even a single
       investigation into the scale of imports of rice                         Does it make a difference if the Commission's decision
       originating in the OCT, the price level of OCT rice or                  was annulled on formal grounds only, and
       the ( threatened ) serious distortion of the Community
                                                                               subsequently reissued ? Does that later decision by the
       market in rice. Nor did the Council have before it any                  Commission have retroactive effect ?
      information provided by the Commission that would
       have enabled it to determine whether the inferences
       drawn by the Commission were accurate.                             D. If the answer to Question C is in the negative :
                                                                               May Directive 91/173/EEC be applied in the Member
— Breach of Article 190 of the EC Treaty.                                      States as directly effective law until such time as a
                                                                               final    determination        has   been    made   as  to     the
( 1 ) OJ No L 51 , 21 . 2 . 1997, p . 1 .                                      applicability of the national provision ?
(2 ) OJ No L 263 , 19 . 9 . 1991 , p . 1 .
                                                                          (') OJ No L 85 , 5 . 4 . 1991 , p . 34 .