CELEX: C2001/200/74
Language: en
Date: 2001-07-14 00:00:00
Title: Case C-165/01: Reference for a preliminary ruling from the Oberster Gerichtshof (Supreme Court) of the Austrian Republic by decision of that Court of 14 March 2001 in the case of Betriebsrat der Vertretung der Europäischen Kommission in Österreich (Works council of the Representation of the European Commission in Austria) v Commission of the European Communities

C 200/40               EN                     Official Journal of the European Communities                                      14.7.2001
—    As regards examination of the merits, the CFI failed to             —     order the European Commission to compensate him for
     comply with its obligation to stay within the limits of                   material and non-material damage;
     the application and exceeded them, thereby infringing
     Community law.                                                      —     order the Commission to pay the costs.
—    The CFI also infringed Article 33(1), second sentence,
     ECSC in that it failed to examine whether there had been
     a manifest failure by the Commission to observe a                   Pleas and main arguments
     relevant provision and failed to appreciate that the
     application did not even satisfy the requirement to show            —     Breach of the right to a fair hearing: Before the decision
     the alleged manifestness of the infringement.                             was taken to transfer him, the appellant was approached
                                                                               in vague and general terms by his line manager for alleged
—    Furthermore, the CFI infringed Article 33(1) ECSC in so
                                                                               lack of care and attention in his work, which was
     far as it annulled the contested decision as a whole and
                                                                               subsequently contradicted in his staff report. It was thus
     not merely with regard to the part of the decision with
                                                                               that, without being heard beforehand and without the
     which the CFI found fault, namely the authorisation of
                                                                               chance to make any comments, a decision to transfer him
     the merger of RAG with SBW, not the merger with
                                                                               was taken by the appointing authority.
     Preussag Anthrazit GmbH.
—    Finally, the CFI infringed its duty to state reasons, because
     it did not adequately deal with the arguments submitted
     by the Commission and the interveners in their pleadings
     and at the hearing, even though they related to main
     grounds of the decision.
(1) Not yet published in the European Court Reports.
                                                                         Reference for a preliminary ruling from the Oberster
                                                                         Gerichtshof (Supreme Court) of the Austrian Republic by
                                                                         decision of that Court of 14 March 2001 in the case of
                                                                         Betriebsrat der Vertretung der Europäischen Kommission
                                                                         in Österreich (Works council of the Representation of
                                                                         the European Commission in Austria) v Commission of
                                                                                            the European Communities
Appeal brought on 12 April 2001 by Franco Campoli
against the judgment delivered on 6 March 2001 by the                                             (Case C-165/01)
Fifth Chamber of the Court of First Instance of the
European Communities in Case T-100/00 between Franco
 Campoli and Commission of the European Communities                                               (2001/C 200/74)
                                                                         Reference has been made to the Court of Justice of the
                        (Case C-161/01 P)
                                                                         European Communities by a decision of the Oberster Gericht-
                                                                         shof of 14 March 2001, which was received at the Court
                         (2001/C 200/73)                                 Registry on 18 April 2001, for a preliminary ruling in the case
                                                                         of Betriebsrat der Vertretung der Europäischen Kommission in
                                                                         Österreich (Works council of the Representation of the
An appeal against the judgment delivered on 6 March 2001                 European Commission in Austria) v Commission of the
by the Fifth Chamber of the Court of First Instance of the               European Communities, on the following questions:
European Communities in Case T-100/00 between Franco
Campoli and the Commission of the European Communities                   1.    Is Article 79 of the Conditions of Employment of Other
was brought before the Court of Justice of the European                        Servants of the European Communities [Article 3 of
Communities on 12 April 2001 by Franco Campoli, represent-                     Council Regulation (EEC, Euratom, ECSC) No 259/68 of
ed by S. Diana, lawyer, with an address for service in Brussels.               29 February 1968 (1)], under which the conditions of
                                                                               employment of local staff, in particular: (a) the manner of
The appellant claims that the Court should:                                    their engagement and termination of their contract, (b)
                                                                               their leave, and (c) their remuneration is to be determined
—    set aside the judgment of the Court of First Instance of                  by each institution in accordance with current rules and
     6 March 2001 in Case T-100/00;                                            practice in the place where they are to perform their
                                                                               duties, to be understood as a reference to the relevant
—    annul the two decisions taken by Mr Lemmel (No 05266                      national law on employment, which, in the case of
     of 11 June 1999 and of 2 December 1999), concerning                       Austria, also requires the application of the law on labour
     the removal of Franco Campoli and the appointment of                      relations in the workplace laid down in Part II of the
     Chantal Bruetschy to the ‘Foodstuffs — Legislation and                    Austrian Arbeitsverfassungsgesetz (Labour Constitution
     scientific and technical aspects’ unit;                                   Act)?
 ---pagebreak--- 14.7.2001              EN                     Official Journal of the European Communities                                    C 200/41
2.    Are the provisions of Article 9 of the Staff Regulations                meaning that the said Articles 43 and 48 do not affect
      of the European Communities (Article 2 of Council                       the applicability of the Netherlands rules laid down in
      Regulation (EEC, Euratom, ECSC) No 259/68 of 29 Febru-                  that law, on the ground that the provisions in question
      ary 1968) and those contained in Annex II to the Staff                  are justified for the reasons stated by the Netherlands
      Regulations concerning the Staff Committee, which also                  legislature?
      represents the interests of local staff of the Communities,
      to be interpreted as laying down exhaustive rules on
      collective employment law and the powers of co-decision
      of local staff and thus as precluding the application of the
      law on labour relations in the workplace laid down in the
      Austrian Labour Constitution Act to local staff serving in
      the Vienna representation of the Commission of the                 Reference for a preliminary ruling by the Hoge Raad der
      European Communities?                                              Nederlanden by decision of 11 April 2001 in the case of
                                                                            Bosal Holding BV and Staatssecretaris van Financiën
(1) OJ 1968, L 56, p. 1.
                                                                                                (Case C-168/01)
                                                                                                (2001/C 200/76)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by decision of 11 April 2001 by
                                                                         the Hoge Raad der Nederlanden (Supreme Court of the
                                                                         Netherlands), which was received at the Court Registry on
Reference for a preliminary ruling by the Kantongerecht                  19 April 2001, for a preliminary ruling in the case of Bosal
te Amsterdam by order of 5 February 2001 in the case of                  Holding BV and Staatssecretaris van Financiën on the following
Kamer van Koophandel en Fabrieken voor Amsterdam                         questions:
                       and Inspire Art Ltd                               1.   Does Article 52 of the EC Treaty, read in conjunction
                                                                              with Article 58 thereof (now, following amendment,
                          (Case C-167/01)                                     Article 43 EC, read in conjunction with Article 48
                                                                              thereof), or any other rule of EC law, preclude a Member
                                                                              State from granting a parent company subject to tax in
                         (2001/C 200/75)                                      that Member State a deduction on costs relating to a
                                                                              holding owned by it only if the relevant subsidiary
Reference has been made to the Court of Justice of the                        company makes profits which are subject to tax in
European Communities by order of 5 February 2001 by the                       the Member State in which the parent company is
Kantongerecht te Amsterdam (Amsterdam Cantonal Court),                        established?
which was received at the Court Registry on 19 April 2001,
for a preliminary ruling in the case of Kamer van Koophandel             2.   Does it make any difference to the answer to Question 1
en Fabrieken voor Amsterdam and Inspire Art Ltd on the                        if, where the subsidiary company is subject to tax based
following questions:                                                          on its profits in the Member State concerned but the
                                                                              parent company is not, the relevant Member State takes
1.    Is (the new) Article 43 in conjunction with Article 48 of               no account of the abovementioned costs in levying tax
      the Treaty establishing the European Community to be                    on the subsidiary company?
      interpreted as precluding the Netherlands, pursuant to
      the Wet op de formeel buitenlandse vennootschappen of
      17 December 1997, from attaching additional conditions,
      such as those laid down in Articles 2 to 5 of that law, to
      the establishment in the Netherlands of a branch of a
      company which has been set up in the United Kingdom
      with the sole aim of securing the advantages which that            Appeal brought on 19 April 2001 by Compañı́a Interna-
      offers compared to incorporation under Netherlands law,            cional de Pesca y Derivados SA (INPESCA) against the
      given that Netherlands law imposes stricter rules than             judgment delivered on 7 February 2001 by the Court of
      those applying in the United Kingdom with regard to the            First Instance of the European Communities (Second
      setting-up of companies and payment for shares, and                Chamber) in Case T-186/98 between Compañı́a Interna-
      given that the Netherlands law infers that aim from the            cional de Pesca y Derivados SA (INPESCA) and the
      fact that the company carries on its activities entirely or                 Commission of the European Communities
      almost entirely in the Netherlands and, furthermore, does
      not have any real connection with the State in which the                                 (Case C-170/01 P)
      law under which it was formed applies?
2.    If, on a proper construction of those articles of the Treaty,                             (2001/C 200/77)
      it is held that the provisions of the Wet op de formeel
      buitenlandse vennootschappen are incompatible with                 An appeal against the judgment delivered on 7 February 2001
      them, must Article 46 of the Treaty be interpreted as              by the Court of First Instance of the European Communities