CELEX: C1997/271/19
Language: en
Date: 1997-09-06 00:00:00
Title: Action brought on 28 July 1997 by the Commission of the European Communities against the Federal Republic of Germany (Case C-272/97)

6 . 9 . 97                EN                     Official Journal of the European Communities                                      C 271 / 11
legislation must necessarily be ensured by the Municipality                 gericht Niedersachsen ( Higher Labour Court of Lower
itself, which must proceed to announce the requisite                        Saxony ) of 8 November 1996, which were received at the
tendering procedures, or whether it may also be ensured                     Court Registry on 24 July 1997, for preliminary rulings in
by the concessionaire, to which the relevant powers are                     the cases of Deutsche Post AG v. Elisabeth Sievers ( Case
transferred; finally, if it should be considered that                       C-270/97) and Deutsche Post AG v. Brunhilde Schrage
compliance with that obligation may also be ensured by                      ( Case C-271/97) on the following questions:
the concessionaire, it is necessary to ascertain whether the
latter has the option of choosing whether to manage the
                                                                            1 . ( a ) Does Community law require precedence of
service itself or whether it must necessarily entrust it to
                                                                                       application or validity ( under the second
third parties.
                                                                                       paragraph of Article 5 and Article 189 of the EC
                                                                                       Treaty ) over national provisions of the Member
( 1 ) Council Directive 92/50/EEC of 18 June 1992, relating to the                     States which could or would be applicable, by way
      coordination of procedures for the award of public service                       of concurrence of claims, to the same factual
      contracts, OJ L 209 , 24 . 7. 1992, p. 1 .
                                                                                       situation and with the same aim of supporting
                                                                                       claims to equal treatment in occupational pension
                                                                                       schemes, as for example in Germany — generally
                                                                                       — the employment law principle of equal
                                                                                       treatment or — specifically — Paragraph 2 ( 1 ) of
                                                                                       the Beschaftigungsforderungsgesetz ( Employment
Reference for a preliminary ruling by the Cour Superieure                              Promotion Law ) 1985 ?
de Justice ( High Court of Justice ) of the Grand Duchy of
Luxembourg by judgment of that court of 26 June 1997                             ( b ) Does the precedence of Community law in such a
in the case of Eric Coursier v. Fortis Bank and Martine                                conflict, where Community law confers benefits
                         Coursier, nee Bellami                                         under occupational pension schemes only if and in
                           ( Case C-267/97 )                                           so far as they are attributable to periods of
                                                                                       employment prior to 17 May 1990, whereas the
                             ( 97/C 271/ 17)                                           national provisions regulate the same factual
                                                                                       situation differently in that they do not exclude
                                                                                       retroactive effect, apply generally ?
Reference has been made to the Court of Justice of the
European Communities by judgment of the Cour                                     ( c ) Does such precedence exist only if the economic
Superieure de Justice of the Grand Duchy of Luxembourg                                 objective of Article 119, which exists alongside the
of 26 June 1997, received at the Court Registry on 22 July                             social objective, namely the creation of equal
1997, for a preliminary ruling in the case of Eric Coursier                            competitive opportunities, is specifically affected ?
v. Fortis Bank and Martine Coursier, nee Bellami, on the
following question:
                                                                            2 . Does at least the principle, to be regarded as part of
                                                                                 Community law, that national law is to be interpreted
Does a judgment delivered in the State of origin in the                          in a Community manner consistent with EC law,
context of a court-supervised liquidation — a matter                             require national provisions on equal treatment with
which is excluded from the scope of the Brussels                                 respect to benefits from occupational pension schemes
Convention — and which is not open to recognition under                          to be interpreted and applied in harmony with the
the national law of the State in which enforcement is                            requirements and limitations ( prohibition of
sought, but which, in the State in which it was given,                           retroactive effect) of Community law ?
confers on one of the parties immunity from execution of
the judgment whose enforcement is sought, affect the
quality of enforceability which, according to the first
paragraph of Article 31 of the Convention, a judgment
must possess in order to be recognized and enforced ?
                                                                            Action brought on 28 July 1997 by the Commission of the
                                                                            European Communities against the Federal Republic of
                                                                                                          Germany
                                                                                                      Case C-272/97 )
Reference for a preliminary ruling from the                                                             97/C 271 / 19
Landesarbeitsgericht Niedersachsen by orders of that court
of 8 November 1996 in the cases of Deutsche Post AG v.
         ( 1 ) Elisabeth Sievers and (2 ) Brunhilde Schrage                 An action against the Federal Republic of Germany was
                   ( Cases C-270/97 and C-271/97 )
                                                                            brought before the Court of Justice of the European
                                                                            Communities on 28 July 1997 by the Commission of the
                               97/C 271 / 18 )                              European Communities, represented by Antonio Caeiro
                                                                            and Jiirgen Grunwald, of its Legal Service, with an
                                                                            address for service in Luxembourg at the office of Carlos
Reference has been made to the Court of Justice of the                      Gomez de la Cruz, also of its Legal Service, Wagner
European Communities by orders of the Landesarbeits­                         Centre, Kirchberg.
 ---pagebreak--- C 271 / 12            I EN I                Official Journal of the European Communities                                      6 . 9 . 97
The applicant claims that the Court should:                            a loan agreement with Coal Products Ltd ('the
                                                                       Defendants') according to which the Applicant, acting
1 . declare that, by failing to implement within the                   pursuant to Article 54 of the ECSC Treaty, agreed to lend
    prescribed period all measures necessary to comply                 £10 million to the Defendants with a view to promoting
    with Council Directive 90/605/EEC (') of 8 November                the consumption of coal produced within the Community.
     1990 amending Directive 78/660/EEC on annual                      An interest rebate was also granted by the agreement.
    accounts and Directive 83/349/EEC on consolidated
    accounts as regards the scope of those Directives, the             The rebate was fixed as the sterling equivalent of ECU
    Federal Republic of Germany has failed to fulfil its               1 875 420 . However, this sum was to be adjusted
    obligations under the EC Treaty;                                   according to the quantity of Community coal actually
                                                                       consumed . The interest rebate was calculated on the basis
2 . order the Federal Republic of Germany to pay the                   that the Defendants would consume 350 000 tonnes per
    costs .                                                            annum of ECSC coal over a 5-year period commencing on
                                                                       28 May 1993 .
Pleas in law and main arguments adduced in support:
                                                                       The loan was due to be repaid in one instalment on
The binding nature of directives in accordance with the                28 May 1997. However a management and employee
third paragraph of Article 189 and the first paragraph of              buy-out of Coal Products Ltd took place on 30 January
Article 5 of the EC Treaty means that Member States to                 1995 and the loan was repaid on 3 February 1995 .
which a directive is addressed are obliged to achieve the
objectives therein specified within the prescribed period.
Such period expired on 1 January 1993 , without Germany                The dispute between the parties relates to only one issue :
taking all necessary internal measures to implement the                the starting date of the period for assessing the quantities
directive .                                                            of coal consumed by the Defendants .
(') OJ L 317, 16 . 11 . 1990, p . 60 .
                                                                       The Commission takes the view that the starting date is
                                                                       28 May 1993 . The Defendants seek to show that the loan
                                                                       agreement was varied in accordance with an offer
                                                                       purportedly made in a letter from the Commission dated
                                                                       23 January 1995 . By requesting coal consumption figures
                                                                       for the 'three years immediately preceding the date of
Action brought on 29 July 1997 by the Commission of the                transfer to the MEBO ' ( i.e. 30 January 1995 ), the
      European Communities against Coal Products Ltd                   Commission is said to have offered to bring the starting
                          ( Case C-274/97 )                            date of the assessment back to 28 May 1992 . The
                                                                       Defendants argue that they accepted the Commission's
                            ( 97/C 271 /20                             offer by their letters of 30 January and 20 March 1995 .
                                                                       Accordingly, they argue that the starting date for the
An action against Coal Products Ltd of Mill Lane,                      assessment period set down in the loan agreement was
Wingerworth, Chesterfield, Derbyshire S42 6NG, England                 varied by the mutual consent of the parties.
was brought before the Court of Justice of the European
Communities on 29 July 1997 by the Commission of the                   The Commission submits that the exchange of letters
European Communities, represented by Messrs Peter                      between the Commission and Coal Products Ltd could
Oliver and Barry Doherty, members of the Legal Service,                only be relied upon as changing the initial contract if ( i )
acting as Agents, with an address for service in                       there were clear words doing so or ( ii ) there was a clear
Luxembourg at the office of Mr Carlos Gomez de la Cruz,                indication of the parties' intention to do so. The
a member of its Legal Service, Centre Wagner, Kirchberg.               Commission never had any such intention.
The Applicant claims that the Court should:
                                                                       The Applicant submits that the Defendants' claim is
                                                                       wholly untenable for the following reasons :
— order the Defendants to pay:
     ( 1 ) the sum of ECU 252 558 ;                                    ( i ) By a mere request for figures, the Commission's letter
                                                                               of 23 January 1995 could not, on any reasonable
     ( 2 ) interest on that sum at 8 % from 3 February 1995,                   construction, be taken as suggesting that the starting
           being the date on which the debt became due;                        date for the assessment period set out in the loan
                                                                               agreement be amended;
     ( 3 ) the costs of the present proceedings.
                                                                        ( ii ) Even on the extreme hypothesis that the loan
Pleas in law and main arguments adduced in support:                            agreement could theoretically have been amended by
                                                                               such a request for information, in the instant case the
On 21 May 1992 the European Coal and Steel Community,                          period referred to by the Commission was plainly the
represented by the Commission ('the Applicant'), concluded                     result of a mistake on its part;