CELEX: C1996/247/13
Language: en
Date: 1996-08-24 00:00:00
Title: Action brought on 19 June 1996 by the Commission of the European Communities against the Italian Republic (Case C-207/96)

24 . 8 . 96           EN                  Official Journal of the European Communities                                No C 247/7
2 . Does the answer to Question 1 depend on whether the              The Commission claims that the Court should :
     undertaking which is awarded the contract, as well as
     pursuing its activity on the awarder's premises, is still       — declare that by failing, within the prescribed time-limit,
     using assets which have been made available to it by the             to enact the laws, regulations and administrative
     awarder ?                                                            measures necessary to comply with Council Directive
                                                                          92/42/EEC of 21 May 1 992 ( 1 ) on efficiency
3 . May it depend on what type the assets made available by               requirements for new hot-water boilers fired with liquid
     the awarder of the contract are ? Can it be decisive                 or gaseous fuels, the Kingdom of Belgium has failed to
     whether fully equipped units ( for example, a functioning            fulfil its obligations under the Treaty ,
     kitchen ) or assets of a subsidiary nature ( for example,
     consumables ) are made available ?                              — order the Kingdom of Belgium to pay the costs .
4 . Is it necessary, for there to be a part of a business , that
     the contractor forms a specific business organization to        Pleas in laiv and main arguments adduced in support:
     perform the contract ?
                                                                     The binding nature of the third paragraph of Article 1 89 of
5 . May it be relevant whether the awarder of the contract           the EC Treaty requires Member States to adopt the
     has had influence on the organization of the contractor         necessary measures to implement directives which are
     and in particular on the number and selection of the            addressed to them before the expiry of the period allotted to
     employees employed to perform the contract ?                    them for that purpose . The period in question expired on
                                                                      1 January 1993 , without the Kingdom of Belgium having
6 . May the existence of the part of a business and with the         adopted the necessary measures .
     contract for services, because the previous contractor no
     longer has anything to carry out as a business ?                (') OJ No L 167, 1992 , p . 17 .
7. Is there a legal transfer of an undertaking, business or
     part of a business within the meaning of the Directive if
     the hospital authority terminates the contract for
     services which it has concluded with a cleaning
     undertaking and on the basis of a new invitation to
     tender concludes a new contract for services with
                                                                     Action brought on 19 June 1996 by the Commission of the
     another cleaning undertaking for the performance of the
                                                                         European Communities against the Italian Republic
     cleaning work in the hospital ? May there in that case be
     a legal transfer even if no tangible and no intangible                                   ( Case C-207/96 )
     assets are transferred ?                                                                   ( 96/C 247/ 13 )
8 . Does it depend on whether the new invitation to tender
     has taken place because the previous contractor did not         An action against the Italian Republic was brought before
    perform the work properly with his employees ( poor              the Court of Justice of the European Communities on
     performance ) or whether the new invitation to tender is        19 June 1996 by the Commission of the European
     intended to achieve a reduction of costs ?                      Communities , represented by Marie Wolfcarius of its Legal
                                                                     Service and Enrico Altieri , Magistrato di Cassazione
                                                                     seconded to the Legal Service, acting as Agents, with an
(') OJ No L 61 , 1977, p . 26 .                                     address for service in Luxembourg at the office of Carlos
                                                                     Gomez de la Cruz, Wagner Centre, Kirchberg .
                                                                    The applicant claims that the Court should :
                                                                     1 . declare that, by not adopting within the prescribed
Action brought on 18 June 1996 by the Commission of the                   period the laws, regulations and administrative
European Communities against the Kingdom of Belgium                       provisions necessary to comply with Council Directive
                        Case C-205 /96 )                                  76/207/EEC ( 1 ) of 9 February 1976 on the
                                                                          implementation of the principle of equal treatment for
                         ( 96/C 247/ 12 )                                 men and women as regards access to employment,
                                                                          vocational training and promotion , and working
An action against the Kingdom of Belgium was brought                      conditions, and by maintaining in force within its own
before the Court of Justice of the European Communities on                legal system rules prohibiting night-work for women,
18 June 1996 by the Commission of the European                           contrary to Article 5 of that Directive , the Italian
Communities, represented by R. Wainwright and J.-F .                      Republic has failed to fulfil its obligations under
Pasquier, acting as Agents, with an address for service in                Community law ;
Luxembourg at the office of C. Gomez de la Cruz, a member
of the Commission 's legal service, Wagner Centre ,                 2 . order the Italian Republic to pay the costs of the
Kirchberg .                                                               proceedings .
 ---pagebreak---  No C 247/8              EN                   Official Journal of the European Communities                                     24 . 8 . 96
 Pleas in law and main arguments adduced in support:                     Reference for a preliminary ruling from the
                                                                         Bundesverwaltungsgericht by order of that court of
 Pursuant to Article 189 of the Treaty, a directive is binding,          8 February 1996 in the administrative-law case of Gut
 as to the result to be achieved, upon each Member State to              Springenheide        GmbH          and       Rudolf Tusky       v.
 which it is addressed. According to established case-law,               Oberkreisdirektor      des      Kreises  Steinfurt  — Amt      für
that provision places Member States under an obligation to               Lebensmittelüberwachung,              Oberbundesanwalt     beim
 bring their legislation into conformity with directives within                      Bundesverwaltungsgericht, intervening
 the period prescribed therein .                                                                  ( Case C-2 10/96 )
                                                                                                     ( 96/C 247/ 15 )
 By not adopting within the prescribed period the laws,
regulations and administrative provisions necessary to                   Reference has been made to the Court of Justice
comply with Council Directive 76/207/EEC , concerning the
                                                                         of the European Communities by order of the
principle of equal treatment for men and women as regards                Bundesverwaltungsgericht ( Federal Administrative Court )
working conditions, and by maintaining in force within its
                                                                         — Third Chamber — of 8 February 1996 , which was
own legal system rules prohibiting night-work for women ,
                                                                         received at the Court Registry on 20 June 1 996 , for a
contrary to Article 5 of that Directive, the Italian Republic
                                                                         preliminary ruling in the case of Gut Springenheide GmbH
has failed to fulfil its obligations under Community law.
                                                                         and Rudolf Tusky v. Oberkreisdirektor des Kreises
                                                                         Steinfurt — Amt fur Lebensmitteliiberwachung ( Chief
(') O J No L 39 , 14 . 2 . 1976 , p . 40 .                               Administrative Officer of the Rural District of Steinfurt —
                                                                         Office for Supervision of Foodstuffs ), Chief Federal
                                                                         Prosecutor attached to the Bundesverwaltungsgericht,
                                                                         intervening, on the following questions :
                                                                         1 . For the purposes of making the requisite determination
                                                                             pursuant to Article 10 ( 2 ) ( e ) of Regulation ( EEC )
Action brought on 19 June 1996 by the Commission of the                      No 1 907/90 ( 1 ) whether statements designed to promote
  European Communities against the Kingdom of Belgium                        sales are likely to mislead the purchaser, is the actual
                          ( Case C-208/96 )                                  expectation of the consumers addressed to be
                                                                             determined or is the aforesaid provision based on the
                            ( 96/C 247/ 14 )
                                                                             criterion of an objectified concept of a purchaser which
                                                                             is to be the subject of a legal interpretation only ?
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities on              2.   In the event that the matter turns on consumers ' actual
 19 June 1996 by the Commission of the European                              expectations, the following questions arise :
Communities , represented by Hubert van Vliet, of its Legal                  ( a ) Is the view of the informed average consumer or
Service, acting as Agent, with an address for service in                           that of the casual consumer determinative ?
Luxembourg at the office of C. Gomez de la Cruz , of the
Legal Service of the Commission of the European                              ( b ) Can the proportion of consumers necessary in order
Communities, Wagner Centre , Kirchberg.                                            to establish a determinative expectation on the part
                                                                                   of consumers be established in percentage terms ?
The applicant claims that the Court should :                             3.  In the event that the matter turns on the criterion of an
                                                                             objectified concept of a purchaser which can be the
 1 . declare that, by failing within the prescribed period                   subject of a legal interpretation only, the question arises
       to adopt the laws, regulations and administrative                     as to how that concept is to be determined .
       measures necessary in order to comply with Council
       Directive    92/ 119/EEC        of  17   December     1992        (') O J No L 173 , 1990 , p . 5 .
       introducing general Community measures for the
       control of certain animal diseases and specific measures
       relating to swine vesicular disease ('), the Kingdom of
       Belgium has failed to fulfil its obligations under the
       Treaty;
                                                                        Reference for a preliminary ruling from the Uudenmaan
2 . order the Kingdom of Belgium to pay the costs .                     Laaninoikeus by order of that court of 30 May 1996 in the
                                                                                    proceedings brought by Outokumpu Oy
                                                                                                 ( Case C-213 /96 )
The pleas in law and main arguments are the same as those
in Case C-205/96 ( 2 ); the time-limit for transposition                                            ( 96/C 247/ 16 )
expired on 1 October 19 93 .
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by an order of the Uudenmaan
(') OJ No I. 62 , 15 . 3 . 1993 , p. 69 .
( 2 ) See page 7 of the Official Journal .                               Laaninoikeus ( Uusimaa Provincial Administrative Court ) of
                                                                        30 May 1996 , which was received at the Court Registry on
                                                                        25 June 1996 , for a preliminary ruling in the proceedings
                                                                         brought by Outokumpu Oy on the following questions :