CELEX: C1999/204/50
Language: en
Date: 1999-07-17 00:00:00
Title: Case C-164/99: Reference for a preliminary ruling by the Amtsgericht Tauberbischofsheim by order of 13 April 1999 in the proceedings concerning the imposition of a fine on Portugaia Construcoes Lda

17.7.1999              EN                     Official Journal of the European Communities                                       C 204/27
— whether Regulation (EC) No 343/94, requiring Italy to                       — maintaining in force Article 15, Title IV of Law No 409
     distil 12 150 000 hl, is unlawful for infringement of                         of 24 July 1985, which refers to Article 1 of Law
     Article 39(11) (b) of Regulation (EEC) No 822/87 (as                          No 1398 of 14 December 1964, having the effect that
     amended by Regulation (EEC) No 1972/87) for the reasons                       only Italian citizens may remain registered in case of
     set out above;                                                                transfer of residence to another Member State.
— in the ... event that Article 39(11)(b) of Regulation (EEC)            2. Order the Italian Republic to pay the costs.
     No 822/87 (as amended by Regulation (EEC) No 1972/87)
     is to be interpreted as authorising such a system of
     calculation [used in Regulation (EEC) No 343/94] whether            Pleas in law and main arguments
     Article 39(11)(b) is unlawful for infringement of the prin-
     ciple of reasonableness, manifest error and inconsistency           The residence obligation may give rise to discrimination in
     in relation to the object pursued, and for infringement of          relation to medical practitioners established in other Member
     the prohibition on discrimination under Article 40 of the           States, since it can be fulfilled more easily by Italian citizens.
     Treaty;                                                             That obligation makes exercise of the profession of dentist in
                                                                         Italy impossible for a practitioner established in another
— whether Article 39(3) (4) and (11) of Regulation (EEC)                 Member State, even close to the border. By contrast, a dentist
     No 822/87, as amended by Regulation (EC) 1566/93, and               established in Italy — especially in the border area — may
     Regulation (EEC) No 343/94 which implements the former              open a branch surgery in another Member State without being
     measures, are unlawful for infringement of the principle of         subject to any condition of residence in that State. As a
     reasonableness, manifest error, misuse of powers and                consequence, the Italian rules apply more strictly to dentists of
     infringement of the principle of proportionality.                   other Member States than to those established in Italian
                                                                         territory.
(1) Commission Regulation of 15 February 1994 (OJ L 44 of
    17.2.1994, p. 9).                                                    Obligatory cancellation from the register in the event of
(2) Council Regulation of 16 March 1987 (OJ L 84 of 27.3.1987,           residence being transferred abroad has the effect of making it
    p. 26).                                                              impossible for non-residents to open a dental surgery in Italian
(3) OJ L 184 of 3.7.1987, p. 26.                                         territory. Such a measure is discriminatory in that it does not
(4) Referred to in the third indent of Article 39(3) of Regulation       prohibit dentists established and resident in Italy from opening
    No 822/87.                                                           a branch surgery in another Member State on condition that
                                                                         they remain resident in the practising district to which they
                                                                         belong in Italy.
Action brought on 30 April 1999 by the Commission of
  the European Communities against the Italian Republic                  Reference for a preliminary ruling by the Amtsgericht
                                                                         Tauberbischofsheim by order of 13 April 1999 in the
                         (Case C-162/99)                                 proceedings concerning the imposition of a fine on
                                                                                             Portugaia Construcoes Lda
                         (1999/C 204/49)
                                                                                                   (Case C-164/99)
An action against the Italian Republic was brought before the                                      (1999/C 204/50)
Court of Justice of the European Communities on 30 April
1999 by the Commission of the European Communities,
represented by Francesco Ruggeri Laderchi and Bernard Mon-               Reference has been made to the Court of Justice of the
gin, of its Legal Service, acting as Agents, with an address for         European Communities by order of 13 April 1999 from the
service in Luxembourg at the offices of Carlos Gómez de la              Amtsgericht Tauberbischofsheim (Local Court, Tauber-
Cruz, Wagner Centre, Kirchberg.                                          bischofsheim), which was received at the Court Registry on
                                                                         4 May 1999, for a preliminary ruling in the proceedings
                                                                         concerning the imposition of a fine on Portugaia Construcoes
The applicant claims that the Court should:                              Lda on the following questions:
1. Declare that the Italian Republic has failed to fulfil its            1. Is an interpretation of Directive 96/71/EC of the European
     obligations under Articles 39 and 43 (formerly Articles 48               Parliament and of the Council of 16 December 1996
     and 52) of the EC Treaty by:                                             concerning the posting of workers in the framework of the
                                                                              provision of services (OJ 1997 L 18, p. 1) or, if that
     — allowing the Legislative Decree of the Provisional                     directive is not applicable, an interpretation of Article 59
         Head of State No 233 of 13 September 1946, despite                   et seq. of the EC Treaty, under which overriding require-
         amendment by Article 9 of Law No 362 of 8 Novem-                     ments of public interest capable of justifying a restriction
         ber 1991, to remain in force in such a way as leave                  on the freedom to provide services in cases involving the
         dentists practising in Italy still subject to a de facto             posting of employees can lie not only in the social
         residence obligation, and                                            protection of the employees posted but also in the
 ---pagebreak--- C 204/28               EN                     Official Journal of the European Communities                                       17.7.1999
    protection of the national construction industry and the             Reference for a preliminary ruling from the Korkein
    reduction in national unemployment for the purpose of                Oikeus by order of that court of 27 April 1999 in the case
    preventing social tension, consistent with Community law?            of Oy Liikenne Ab v Pekka Liskojärvi and Pentti Juntunen
2. Does it amount to an unjustified restriction on the freedom
    to provide services under the EC Treaty if a domestic                                         (Case C-172/99)
    employer can pay less than the minimum wage laid down
    in a collective agreement declared to be generally binding                                    (1999/C 204/52)
    by concluding a collective agreement specific to one
    undertaking (and enjoying precedence), whereas this is
    — at least in fact — not possible for a non-German EC                Reference has been made to the Court of Justice of the
    employer in the case where he proposes to post workers               European Communities by an order of the Korkein Oikeus
    to the Federal Republic of Germany?                                  (Supreme Court), Finland, of 27 April 1999, which was
                                                                         received at the Court Registry on 7 May 1999, for a preliminary
                                                                         ruling in the case of Oy Liikenne Ab v Pekka Liskojärvi and
                                                                         Pentti Juntunen on the following question:
                                                                         Is a situation in which the operation of bus routes passes from
                                                                         one bus undertaking to another as a consequence of a
                                                                         tender procedure under Directive 92/50/EEC on public service
Action brought on 4 May 1999 by the Commission of the                    contracts (1) to be regarded as a transfer of a business for the
   European Communities against the Kingdom of Spain                     purposes of Article 1(1) of Directive 77/187/EEC (2)?
                          (Case C-168/99)
                                                                         (1) Council Directive 92/50/EEC of 18 June 1992 relating to the
                                                                             coordination of procedures for the award of public service
                          (1999/C 204/51)                                    contracts (OJ L 209 of 24.7.1992, p. 1).
                                                                         (2) Council Directive 77/187/EEC of 14 February 1977 on the
An action against the Kingdom of Spain was brought before                    approximation of the laws of the Member States relating to the
the Court of Justice of the European Communities on 4 May                    safeguarding of employees’ rights in the event of transfers of
1999 by the Commission of the European Communities,                          undertakings, businesses or arts of businesses (OJ L 61 of
                                                                             5.3.1977, p. 26).
represented by Juan Guerra Fernández, of its Legal Service,
acting as Agent, with an address for service in Luxembourg at
the office of Carlos Gómez de la Cruz, of its Legal Service,
Wagner Centre, Kirchberg.
The applicant claims that the Court should:
1. Declare that, by failing to adopt and bring into force or
    communicate all the laws, regulations and administrative             Reference for a preliminary ruling by the High Court of
    provisions necessary to comply with Council Directive                Justice (England & Wales), Queen’s Bench Division
    96/43/EC of 26 June 1996 amending and consolidating                  (Crown Office), by order of that court of 14 April 1999,
    Directive 85/73/EEC in order to ensure financing of                  in the case of The Queen against Secretary of State for
    veterinary inspections and controls on live animals and              Trade and Industry, Ex parte: Broadcasting, Entertain-
    certain animal products and amending Directives                          ment, Cinematographic and Theatre Union (BECTU)
    90/675/EEC and 91/496/EEC (1), the Kingdom of Spain
    has failed to fulfil its obligations under the EC Treaty; and
                                                                                                  (Case C-173/99)
2. Order the defendant to pay the costs.
                                                                                                  (1999/C 204/53)
Pleas in law and main arguments
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by an order of the High Court of
The mandatory nature of the provisions ot the third paragraph            Justice (England & Wales), Queen’s Bench Division (Crown
of Article 249 and the first paragraph of Article l0 of the EC           Office), of 14 April 1999, which was received at the Court
Treaty requires Member States to adopt the measures necessary            Registry on 10 May 1999, for a preliminary ruling in the case
to transpose directives addressed to them into their domestic            of The Queen against Secretary of State for Trade and Industry,
law before the expiry of the period prescribed for doing so.             Ex parte: Broadcasting, Entertainment, Cinematographic and
That period, which is laid down in Article 4 of the directive,           Theatre Union (BECTU), on the following questions:
expired on 1 July 1997 without Spain having brought into
force the necessary provisions.
                                                                         1. Is the expression ‘in accordance with the conditions for
                                                                              entitlement to, and granting of, such leave laid down by
(1) OJ 1996 L 162, p. 1.                                                      national legislation and/or practice’ in Article 7 of Council
                                                                              Directive 93/104/EC of 23 November 1993 concerning
                                                                              certain aspects of the organization of working time (OJ
                                                                              1993 L 307, p. 18: ‘the Working Time Directive’) to be