CELEX: C2000/335/57
Language: en
Date: 2000-11-25 00:00:00
Title: Case C-336/00: Reference for a preliminary ruling by the Oberster Gerichtshof of the Republic of Austria by order of that court of 26 January 2000 in the case of Republic of Austria against Martin Huber

C 335/32              EN                    Official Journal of the European Communities                                      25.11.2000
     The appellant maintains that the Court of First Instance,         (a)   if so, does Article 73 in conjunction with Article 75 of
     which does not have to interpret French law but only to                 Regulation No 1408/71, having regard also to Article 10a
     apply it in appropriate cases, committed an obvious error               and to the fact that the Laki lasten kotihoidon ja yksityisen
     in holding that the Parliament’s argument that it could                 hoidon tuesta is not mentioned in Annex IIa of the
     negotiate with self-employed taxi drivers without causing               regulation, impose an obligation to pay home childcare
     them to infringe French legislation was ‘credible’. The                 allowance in respect of a child in the family of an
     Court of First Instance had to find that the Parliament                 employee posted temporarily to another Member State,
     failed to take any steps with the French authorities                    even in a case where the condition concerning actual
     to obtain information, claiming that it was for those                   residence which is a condition for receipt of the benefit
     authorities to approach the Parliament and for the self-                under national legislation is not satisfied, as a conse-
     employed taxi drivers to comply with the legislation in                 quence of which the choice referred to in the law between
     the performance of the contract, without concerning                     a day-care place organised by the local authority and
     itself with the possibility that the call for tenders might             home child-care allowance is not possible to make or has
     have an effect in breach of the legislation.                            not in fact been made;
—    Infringement of essential procedural requirements (insuf-         (b) if not, does Community law impose an obligation on
     ficient statement of reasons).                                          another ground to pay home child-care allowance in
—    Error in assessing the plea in law claiming discrimination.             another Member State in the situation described in
                                                                             point (a)?
—    After the revelations in the defence, AICS was justified in
     requesting the Court of First Instance to hold that the
     condition appearing in the notice concerning three years’         (1) Council Regulation No 1408/71 of 14 June 1971 on the appli-
     business had been infringed, and the plea in law raised on            cation of social security schemes to employed persons, to self-
                                                                           employed persons and to members of their families moving
     that point by AICS should have been accepted.                         within the Community (OJ, English Special Edition 1971, p. 416).
—    Since it has been shown that the Parliament established
     an unlawful system of working to the benefit of self-
     employed taxi drivers and to the detriment of AICS
     carrying on the business at a large discount enabling it to
     submit its offer, the conditions for holding the institution
     liable and awarding compensation to a private person
     suffering loss are met.
                                                                       Reference for a preliminary ruling by the Oberster
                                                                       Gerichtshof of the Republic of Austria by order of that
                                                                       court of 26 January 2000 in the case of Republic of
                                                                                        Austria against Martin Huber
Reference for a preliminary ruling from the Tarkastuslau-
takunta by order of that tribunal of 31 May 2000 in the                                         (Case C-336/00)
                  case of Päivikki Maaheimo
                                                                                                (2000/C 335/57)
                        (Case C-333/00)
                        (2000/C 335/56)                                Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Oberster Gerichtshof
Reference has been made to the Court of Justice of the                 (Supreme Court) of the Republic of Austria of 26 January
European Communities by an order of the Tarkastuslautakunta            2000, received at the Court Registry on 14 September 2000,
(Social Security Review Tribunal), Finland, of 31 May 2000,            for a preliminary ruling in the case of Republic of Austria
which was received at the Court Registry on 11 September               against Martin Huber on the following questions:
2000, for a preliminary ruling in the case of Päivikki Maaheimo
on the following questions:                                            1.    Was Council Regulation (EEC) No 2078/92 of 30 June
                                                                             1992 on agricultural production methods compatible
Does home child-care allowance under the Laki lasten kotihoi-                with the requirements of the protection of the environ-
don ja yksityisen hoidon tuesta (Law on home child-care                      ment and the maintenance of the countryside (OJ 1992
allowance and private child-care allowance, 1128/1996) fall                  L 215, p. 85) validly adopted?
within the material scope of Community law as a family
benefit within the meaning of Article 4(1)(h) of Council               2.    Does a decision on the approval of a programme under
Regulation (EEC) No 1408/71 of 14 June 1971 on the appli-                    Article 7 of Council Regulation (EEC) No 2078/92 of
cation of social security schemes to employed persons, to self-              30 June 1992 on agricultural production methods com-
employed persons and to members of their families moving                     patible with the requirements of the protection of the
within the Community (1), as amended and updated by Council                  environment and the maintenance of the countryside also
Regulation (EEC) No 2001/83 of 2 June 1983 and amended                       encompass the content of the programmes submitted by
by Council Regulation (EEC) No 3427/89 of 30 October 1989;                   the Member States for approval?
 ---pagebreak--- 25.11.2000             EN                    Official Journal of the European Communities                                         C 335/33
3.    Are farmers who apply for aid under that programme                2.    order the Commission to pay the appellant’s costs of the
      also to be regarded as persons to whom the decision is                  proceedings before the Court of First Instance and the
      addressed and is the form of the notification chosen in                 Court of Justice.
      that regard, in particular the obligation on the Member
      States to provide farmers with appropriate information,
      sufficient to make the decision binding on those farmers
      and any conflicting contracts granting support ineffec-           Pleas in law and main arguments
      tive?
                                                                        —     Infringements of          Article 81(1)    EC     (previously
4.    May a farmer in this instance, irrespective of the content              Article 85(1) EC):
      of the programme within the meaning of Regulation
      No 2078/92 approved by the Commission, rely on the                      —     The Court of First Instance wrongly regards the
      statements of the administrative bodies of the Member                         restricting of the bonus for sales outside the contract
      States so that a claim for recovery is precluded?                             territory to a maximum of 15 % of overall sales as
                                                                                    incompatible with Article 81(1) EC. A dealer who
5.    Are the Member States free under Regulation No 2078/92                        sells a vehicle in a territory which does not belong
      to implement programmes within the meaning of that                            to his contract territory has in general substantially
      regulation either by private-sector measures (contracts)                      fewer expenses in respect of the sale as such and
      or by forms of State action?                                                  post-sales service than in the case of a sale in his
                                                                                    own contract territory. The disadvantage in terms
6.    In assessing whether restrictions on the possibilities of                     of bonus therefore corresponds to an economic
      claiming recovery on grounds of the protection of                             advantage and the bonus rules therefore had no
      legitimate expectations and legal certainty accord with                       anti-competitive ‘object’ and no restrictive ‘effect’ on
      the interests of Community law, is only the respective                        competition. Contrary to the view of the Court of
      form of action to be taken into account or also the                           First Instance, the 15 % rule was in any event
      possibilities of claiming recovery which exist in other                       exempted through Regulation 123/85 in accordance
      forms of action and particularly favour the Community                         with Article 81(3) EC. It reflects the particular
      interests?                                                                    responsibility which a dealer bears for his own
                                                                                    contract territory.
                                                                              —     The ‘restrictions in supply’ to the Italian market,
                                                                                    which the Court of First Instance took into account,
                                                                                    does not fall within the scope of the prohibition on
                                                                                    cartels in Article 81(1) EC, since it is a unilateral
                                                                                    measure. The restrictions found by the Court were
Appeal brought on 14 September 2000 by Volkswagen                                   not in any event intended by the dealers and, if such
AG against the judgment delivered on 6 July 2000 by the                             restrictions existed, they were of a unilateral nature.
Fourth Chamber of the Court of First Instance of the
European Communities in Case T-62/98 between Volks-                     —     Infringements of Regulation No 17:
                wagen AG and the Commission
                                                                              —     The taking into account of the 15 % bonus rule
                        (Case C-338/00 P)                                           when setting the fine infringes Article 15(5)(a) of
                                                                                    Regulation No 17: when the 1985 version of Regu-
                         (2000/C 335/58)                                            lation No 27 applied, there was no specific form
                                                                                    in which the Commission was to be notified of
                                                                                    subsequent amendments to notified agreements and,
An appeal against the judgment delivered on 6 July 2000 by                          as a result of ‘Complementary Note’ VI, first para-
the Fourth Chamber of the Court of First Instance of the                            graph, a communication in any form to the Com-
European Communities in Case T-62/98 between Volkswagen                             mission had the legal quality of a notification.
AG and the Commission has been brought before the Court of
Justice of the European Communities on 14 September 2000
by Volkswagen AG, represented by Professor Dr. Rainer                         —     The Court’s findings as to the intentional nature of
Bechtold, Gleiss Lutz Hootz Hirsch, Stuttgart, with an address                      the infringement do not satisfy the requirements of
for service in Luxembourg at the chambers of De Bandt, Van                          Article 15(2) of Regulation No 17: that provision
Hecke, Lagae and Loesch, 4 Rue Carlo Hemmer, 1011                                   requires a precise finding as to which persons acted
Luxembourg.                                                                         in which capacity, why that action is to be attributed
                                                                                    to the appellant, and that the elements of fault are
                                                                                    also to be attributed to the appellant. Even in the
The appellant claims that the Court should:                                         case of legal persons the existence of fault on their
                                                                                    part must, in truth, depend on the acts of the natural
1.    set aside the judgment of the Court of First Instance                         persons in each case. Even if it were to be argued
      (Fourth Chamber) of 6 July 2000 in Case T-62/98 (1) and                       that an undertaking is liable for the conduct of all
      declare void the Commission Decision of 28 January                            persons who act in its sphere of activity and
      1998 (Case IV/35.733 — VW),                                                   responsibility, there must at least be a finding that