CELEX: C1996/180/42
Language: en
Date: 1996-06-22 00:00:00
Title: Reference for a preliminary ruling by Her Majesty's Court of Session in Scotland, by decision of that court of 29 March 1996, in the case of Marie Brizard et Roger International SA against William Grant & Sons (International) Ltd and Another (Case C-126/96)

No C 180/20              EN j                 Official Journal of the European Communities                                      22 . 6 . 96
 Pleas in law and main arguments                                                38 ( 1 ) where the issuing court has already ordered that
                                                                                provisional execution of the judgment against the
 Lack of competence of the Commission ( see Case C-ll/96,                      judgment debtor is to be conditional on the provision of
 OJ No C 95 , 1996, p. 5 ).                                                     certain security to the judgment debtor.
 Misuse, of powers: the articles added ex novo to Directive
 90/388/EEC by Directive 96/2/EC make substantive                         Interrelationship between Article 38 (2) and the issuing
 changes to the existing system without observing either the              court's order for security
 division of powers between the Community institutions and
 in relation to the Member State or the procedure and the
 timetable laid down by the Council for drawing up the                    3 . Whether or not the Article 37(1 ) appellate court has the
 necessary provisions to enable the obligations flowing from                   power to consider whether the security or guarantee
 the full liberalization of the mobile and personal                            already provided by the judgment creditor is an
 communications sector to be imposed upon the Member                           adequate response to the order of the issuing court and
 States .                                                                      take account of any inadequacy in deciding whether to
                                                                               make an order under Article 38 ( 2 ), and
 (') OJ No L 20, 26 . 1 . 1996 , p . 59 .
 ( 2 ) OJ No L 192 , 24 . 7 . 1990, p . 10.
                                                                          4 , whether or not the Article 37(1 ) appellate court has the
                                                                               power, under Article 38 ( 2 ), to make enforcement
                                                                               conditional on the provision of security or guarantee
                                                                               greater than that ordered by the issuing court pending a
                                                                               final determination of the appeal proceedings in the
                                                                               issuing country .
Reference for a preliminary ruling by Her Majesty's Court
of Session in Scotland, by decision of that court of 29 March
 1996, in the case of Marie Brizard et Roger International SA             Time of exercise of Article 38 (1 ) power to sist or stay
against William Grant & Sons ( International ) Ltd and
                                 Another
                            Case C- 1 26/96                              5 . Whether or not the power to sist or stay the proceedings
                             ( 96/C 180/42 )                                   under Article 38 ( 1 ) may be exercised by an Article 37
                                                                               ( 1 ) appellate court only on dismissing the Article 37 ( 1 )
                                                                               appeal (regardless of whether a further appeal on a point
Reference has been made to the Court of Justice of the
European Communities by a decision of Her Majesty's                            of law may be made^ to the court designated under
                                                                              Article 37 ( 2 )) or instead may be exercised by the Article
Court of Session in Scotland of 29 March 1996, which was
                                                                               37(1 ) appellate court before it reaches any final decision
received at the Court Registry on 18 April 1996, for a                        on the merits of the appeal before it.
preliminary ruling in the case of Marie Brizard et Roger
International SA against William Grant & Sons
( International ) Ltd and another, on the following
questions :                                                              Interrelationship between Article 38 (1 ) and Article 34
Interrelationship between Article 38 (l )( l ) and Article 38
(2)
                                                                         6 . Whether, when deciding whether or not to exercise the
                                                                              power given under Article 38 ( 1 ), the Article 37 ( 1 )
                                                                              appellate court may properly take into consideration,
1 , ( a ) Whether or not, in a situation where adequate
            protection for the judgment debtor can be made
            available, Article 38 is to be construed to make                      ( i ) only those matters set out in Articles 27 and 28 ;
            available to the Article 37 ( 1 ) appellate court both
            the Article 38 ( 1 ) power to sist or stay the                      ( ii ) those matters which have arisen due to a material
            proceedings and the Article 38 ( 2 ) power to make
                                                                                        change of circumstances since the order for
            enforcement of a judgment conditional on such
                                                                                        provisional execution was pronounced;
            security as the Court shall determine, and
       ( b) If Question ( 1 ) ( a ) is answered in the affirmative,           ( iii ) matters of which the respondents could not have
            whether the exercise of one of these powers is to be                        been aware at the time the order for provisional
            preferred to that of the other.                                             execution was pronounced;
Interrelationship between Article 38 (1 ) and the issuing                     ( iv ) matters of which the respondents were unaware at
court's order for security                                                              the time of the order for provisional execution,
                                                                                        whether or not they might reasonably have
2 . Whether or not the Article 37(1 ) appellate court has the                           anticipated them, and which were accordingly not
       power to order a sist or stay in proceedings under Article                       presented to the issuing court;
 ---pagebreak--- 22 . 6 . 96           | EN                  Official Journal of the European Communities                                  No C 180/21
      (v )  matters of which the defenders were aware but              Reference for a preliminary ruling by the Conseil d'Etat du
            which they did not have opportunity to raise               Royaume de Belgique by judgment of that court of
            before the issuing court ?                                 29 March 1996 in the case of Inter-Environnement
                                                                                  Wallonie ASBL against Région Wallonne
Powers ancillary to the exercise of Article 38 (1 ) power to                                     ( Case C- 1 29/96 )
sist or stay                                                                                        ( 96/C 180/44 )
7. Whether the Article 37 ( 1 ) appellate court has power to
      make an order for a stay or sist of the enforcement              Reference has been made to the Court of Justice of the
                                                                       European Communities by judgment of the Conseil d'Etat
      proceedings conditional upon the judgment debtor                 Section d'Administration ( Council of "State, Administrative
      providing security or guarantee sufficient to protect the        Section ) of 29 March 1996 , which was received at the Court
      interests of the judgment creditor in the event that the
                                                                       Registry on 23 April 1996, for a preliminary ruling in the
      judgment debtor is unsuccessful in its appeal against the
      judgment in the issuing State .
                                                                       case of Inter-Environnement Wallonie ASBL against Région
                                                                       Wallone on the following questions :
0 ) Article 38 ( 1 ) of the Convention of 27 September 1968 on
     Jurisdiction and the Enforcement of Judgments in Civil and        1 . Do Articles 5 and 189 of the EC Treaty preclude
     Commercial Matters ( OJ No L 299 , 1972 , p . 32 ) as amended by        Member States from adopting a provision contrary to
     the Convention of 9 October 1978 on the Accession of the                Directive 75/442/EEC of 15 July 1975 on waste (*), as
     Kingdom of Denmark, Ireland and the United Kingdom of                   amended by Directive 91 /156/EEC of 18 March
     Great Britain and Northern Ireland ( OJ No L 304, 1978 , p . 1          1991 ( 2 ), before the period for transposing the latter has
     and — as amended — p . 77 ).                                            expired ?
                                                                             Do those same Treaty Articles preclude Member States
                                                                             from adopting and bringing into force legislation which
                                                                             purports to transpose the abovementioned Directive but
                                                                             whose provisions appear to be contrary to the
Reference for a preliminary ruling by Sala de lo Social,                     requirements of that Directive ?
Tribunal Superior de Justicia, Murcia, by order of that court
of 22 February 1996 in the case of Francisco Hernández                 2 . Is a substance referred to in Annex I to Council Directive
Vidal, SA and Prudencia Gómez Pérez, María Gómez Pérez,                      91 /156/EEC of 18 March 1991 amending Directive
                  and Contratas y Limpiezas, SL                              75/442/EEC on waste and which directly or indirectly
                           Case C-127/96 )                                   forms an integral part of an industrial production
                           ( 96/C 180/43 )
                                                                             process to be considered 'waste' within the meaning of
                                                                             Article 1 ( a ) of that Directive ?
Reference has been made to the Court of Justice of the
                                                                       (') OJ No L 194 , 1975 , p . 39 .
European Communities by an order of the Sala de lo Social              ( 2 ) OJ No L 78 , 1991 , p . 32 .
( Chamber for Social Matters ), Tribunal Superior de Justicia
( High Court of Justice ), Murcia, of 22 February 19 96 ,
which was received at the Court Registry on 22 April 1996 ,
for a preliminary ruling in the case of Francisco Hernandez
Vidal, SA and Prudencia Gomez Pérez, Maria Gômez Pérez,
and Contratas y Limpiezas, SL on the following
questions :
                                                                       Reference for a preliminary ruling by order of the Supremo
( a ) whether the work of cleaning the premises of an                  Tribunal Administrative ( Second Division — Taxation
       undertaking whose main business is not cleaning, being          matters ) of 28 February 1996 in the proceedings pending
       in this case the production of chewing gum and sweets,          before that court between Fazenda Publica and Solisnor —
       but having a permanent need for that secondary                                          Estaleiros Naveis SA
       activity, is a 'part of a business'.
                                                                                                  ( Case C- 1 3 0/96 )
( b ) and whether the term ' legal transfer' may cover the                                            96/C 180/45 )
       termination of a mercantile contract for the provision
       of cleaning services, after three years, with annual
                                                                       Reference has been made to the Court of Justice of the
       renewals, at the end of the third year, by decision of the
       undertaking hiring the services; and whether, if that is        European Communities by an order of the Supremo
                                                                       Tribunal Administrative ( Supreme Administrative Court)
       the case, it may depend on whether the undertaking
       hiring the services carries out the cleaning using its own
                                                                       ( Second Division — Taxation matters ) of 28 February 1996 ,
       workers or using workers under a new contractual                which was received at the Court Registry on 24 April 1996 ,
                                                                       for a preliminary ruling in the proceedings pending before
       arrangement .
                                                                       that court between Fazenda Publica ( National Revenue
                                                                       Authority ) and Solisnor — Estaleiros Naveis SA, on the
                                                                       following question :