CELEX: C1995/174/03
Language: en
Date: 1995-07-08 00:00:00
Title: Reference for a preliminary ruling from the Tribunal Tributario de Segunda Instância by an order of 29 November 1994 in the case of Pascoal & Filhos SA against Fazenda Pública (Case C-97/95)

No C 174/2               EN                    Official Journal of the European Communities                                           8 . 7 . 95
      differences between the work of the two groups with                        or can a claim for breach of official duty arise only from
      regard to paid breaks, freedom to organize one 's own                      paragraph 839 of the German Civil Code , in
      work and work-related inconveniences, the two types of                     conjunction with Article 34 of the Grundgesetz ( Basic
      work are of equal value or whether those circumstances                     Law )?
      may be considered to be objective factors unrelated to
      any discrimination on grounds of sex which are such as              (') OJ No L 6 , 10 . 1 . 1979 , p . 24 .
      to justify any pay differentials.
5 . The principle of equal pay for men and women also
      applies where the elements of the pay are determined by
      collective bargaining or by negotiation at local level.
      However, the national court may take that fact into                 Reference for a preliminary ruling from the Tribunal
      account in its assessment of whether differences                    Tributario de Segunda Instancia by an order of
      beteween the average pay of two groups of workers are               29 November 1994 in the case of Pascoal &c Filhos SA
      due to objective factors unrelated to any discrimination                                  against Fazenda Publica
      on grounds of sex.                                                                              ( Case C-97/95 )
                                                                                                        ( 95 /C 174/03 )
(') OJ No C 287, 23 . 10 . 1993 , p . 7 .
( 2 ) OJ No L 45 , 19 . 2 . 1975 , p . 19 .
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by an order of the Tribunal
                                                                          Tributario de Segunda Instancia ( Customs Court of Second
                                                                          Instance ), Lisbon, of 29 November 1995 , which was
                                                                          received at the Court Registry on 27 March 19 95 , for a
                                                                          preliminary ruling in the case of Pascoal & Filhos SA and
Reference for a preliminary ruling from the Hanseatisches                 Fazenda Publica on the following questions :
Oberlandesgericht in Bremen by order of that court of
14 February 1995 in the case of Bruna-Alessandra Ziichner                 ( a ) Does the responsibility of the exporter, referred to in
         v. Handelskrankenkasse ( Ersatzkasse ) Bremen                            Article 10 ( 1 ) of Annex II to Council Decision
                            ( Case C-77/95 )                                      86/283/EEC (') of 30 June 1986 , extend to customs
                              ( 95/C 174/02 )
                                                                                  duties resulting from the cancellation of movement
                                                                                  certificates  EUR.l        issued  on  the basis    of false
                                                                                  information as to the origin of the goods ?
Reference has been made to the Court of Justice of the
European Communities by an order of the Hanseatisches                     ( b ) ' What is the meaning and scope of the modal adverb
Oberlandesgericht in Bremen — Erster Zivilsenat ( Higher                          ' also ' used in the second subparagraph of
Regional Court, Bremen — First Civil Senate ) of                                  Article 201 ( 3 ) of the Community Customs Code ( 2 ), in
14 February 1995 , which was received at the Court Registry                       particular where the national customs law provides
on 15 March 1995 , for a preliminary ruling in the case of                        that responsibility for payment of the duties due in
Bruna-Alessandra           Ziichner      v.   Handelskrankenkasse
                                                                                  respect of the goods involved in the infringement
( Ersatzkasse ) Bremen on the following questions :                               attaches exclusively to the person who committed the
                                                                                  customs infringement ?
1 . Does the plaintiff, as the wife of the insured person who
      is in need of care, belong to the working population                (c ) May the rule in the judgment of the Court of Justice of
      within the meaning of Article 2 of Council Directive                        the European Communities of 7 December 1993 in
      79/7/EEC of 19 December 1978 f 1 )?                                         Case C-12/92 (') E. Huygen, published at pages 5 and 6
                                                                                  of Proceedings of the Court of Justice No 35/93 ,
2 . Although paragraph 37 ( 3 ) of the SGB, Book V, is                            although relating to the Free Trade Agreement between
      formulated in neutral terms with regard to sex, does it                     the EEC and Austria, apply to the circumstances of this
      discriminate, within the meaning of the Directive,                          case, which concerns the interpretation and application
      against the plaintiff as a woman ?                                          of Council Decision 86/283/EEC ?
3 . Does the plaintiff, who is not insured by the defendant,              ( d ) What is the meaning, purport and scope of the results of
      have direct entitlement, or does her husband , as the                       the verification referred to by Article 25 ( 3 ) of Annex II
                                                                                  to Decision 86/283/EEC ?
      insured person, alone have direct entitlement ?
                                                                          ( e ) May a procedure for post-clearance recovery in the
4 . Is the defendant itself liable , as an organ of the State
                                                                                  Member State of importation be commenced and
      ( substitute sickness insurance fund )? If not, who is liable
      in its stead ?
                                                                                  completed before the results of the verification are
                                                                                  forwarded by the customs authorities in the exporting
                                                                                  country to the customs authorities in the importing
5 . Does a claim for breach of official duty, irrespective of                     country and without the importer being aware of the
      fault, exist under the law of the European Communities,                     results of the verification ?
 ---pagebreak---   !. 7 . 95            I EN                   Official Journal of the European Communities                                  No C 174/3
( f) Does the levying on an importer acting in good faith of                  claims commission was entered into in that place within
        the duties payable on goods in respect of which an                    the agent's geographical area .
        exporter has committed a customs offence, in which the
        importer was in no way involved , infringe the principles
        of justice, prohibition of enrichment at the expense of
        others, proportionality, legal certainty and good
        faith ?
                                                                         Appeal brought on 31 March 1995 by the Bundesverband
(g ) Since the customs authorities in the country of                     der Bilanzbuchhalter against the judgment delivered on
        exportation neglected to carry out a prior inspection of         23 January 1995 by the Fourth Chamber of the Court of
        the exporter 's warehouses before issuing the-movement           First Instance of the European Communities in Case
        certificates EUR.l , and since the Portuguese importer           T-84/94 between the Bundesverband der Bilanzbuchhalter
        cannot remedy the situation arising from such                        and the Commission of the European Communities
        negligence , does that situation not constitute a case of                              ( Case C-107/95 P )
        force majeure for the importer, precluding the
                                                                                                     95 /C 174/05 )
        procedure for post-clearance recovery commenced
        against it ?
                                                                         An appeal against the judgment delivered on 23 January
(') OJ No L 175 , 1 . 7. 1986 , p . 1 .
                                                                         1995 by the Fourth Chamber of the Court of First Instance
( 2 ) OJ No L .302 , 19 . 10 . 1992 , p . 1 .                            of the European Communities in Case T-84/94 between the
(') 1 1993 | ECR , p . 1-6381 .                                          Bundesverband der Bilanzbuchhalter and the Commission
                                                                         of the European Communities was brought before the
                                                                         Court of Justice of the European Communities on 3 1 March
                                                                         1995 by the Bundesverband der Bilanzbuchhalter,
                                                                         represented by Joachim A. Miiller, Rechtsanwalt, Munich,
                                                                         with an address for service in Luxembourg at the Chambers
                                                                         of Arsene Kronshagen, 12 Boulevard de la Foire .
Reference for a preliminary ruling from the Polimeles
Protodikio , Athens , by judgment of that court of                       The appellant claims that the Court should :
30 November 1994 in the case of Georgios Kontogeorgas v.
                            Kartonpak AE                                 set aside the judgment of the Court of First Instance of
                          ( Case C-104/95 )                              23 January 1995 in Case T-84/94 (').
                            ( 95 /C 174/04 )
                                                                         Pleas in law and main arguments adduced in support:
Reference has been made to the Court of Justice of the                   Infringement of the provisions of the EC Treaty , in
European Communities by a judgment of the Polimeles                      particular Articles 5 , 59 , 86 and 90 ( 1 ) and ( 3 ), and
Protodikio ( Court of First Instance , several judges ), Athens ,        misinterpretation of Articles 155 and 169 of the EC Treaty .
of 30 November 1994 , which was received at the Court
                                                                         Contrary to the assumption made in the contested
Registry on 31 March 1995 , for a preliminary ruling in the              judgment, an action against a refusal to bring proceedings
case of Georgios Kontogeorgas v. Kartonpak AE pending                    under Article 1 69 or Article 90 ( 3 ) of the EC Treaty must in
before it on the following questions :                                   any event be admissible where it is pleaded that the refusal is
                                                                         based on a defective investigation into the facts or the
 1 . Where the commercial agent is responsible for a specific            assessment by the Commission in the case in point is reduced
      geographical area , is he entitled to commission on                to naught.
       transactions entered into without his involvement at any
       stage and irrespective of whether he himself had found            (') OJ No C 74 , 25 . 3 . 1995 , p . 11 .
       the customers in question, or is he so entitled only on
       transactions concluded in his area of activity as a result
       of his intervention with customers which he himself has
       found ?
2 . What is the meaning to be attached to the term                       Action brought on 10 April 1995 by the Federal Republic of
       'customer belonging ' to that area ? In particular where             Germany against the Council of the European Union
       the customer is a company whose seat is located in a                                       ( Case C-122/95 )
       different place from that in which its managerial and
                                                                                                    ( 95 /C 174/06 )
       commercial activity is carried on , does the word
       ' belonging' refer to the company's seat or to the place in
       which its commercial activity is actually carried on              An action against the Council of the European Union was
       and/or its works or other establishments are located ,            brought before the Court of Justice of the European
       where the transaction in respect of which commission is           Communities on 10 April 1995 by the Federal Republic of
       sought was to supply those works or establishments and            Germany, represented by Ernst Roder and Berndt Kloke,
       the relevant transaction in respect of which the agent            Federal Ministry of Economics, Bonn.