CELEX: C1996/158/24
Language: en
Date: 1996-06-01 00:00:00
Title: Action brought on 17 April 1996 by the Commission of the European Communities against the Kingdom of Spain (Case C-124/96)

No C 158/ 10            EN                    Official Journal of the European Communities                                       1 . 6 . 96
Appeal brought on 15 April 1996 by Susan Ryan-Sheridan                   gericht ( Higher Labour Court) Hamburg — Third Chamber
against the judgment delivered on 15 February 1996 by the                — of 29 March 1996 , which was received at the Court
Third Chamber of the Court of First Instance of the                      Registry on 15 April 1996 , for a preliminary ruling in the
European Communities in Case T-589/93 between Susan                      dispute between Mrs Sultan Bulut and Deutsche Bundespost
Ryan-Sheridan and European Foundation for the                            on the following questions :
        Improvement of Living and Working Conditions
                          Case C-1 19/96 P                               1 . Is Article 1 ( 1 ) of Directive 77/ 178/EEC ( ') to be
                                                                             interpreted as meaning that there is also a transfer of
                             ( 96/C 158/22 )
                                                                             part of a business to another employer within the
                                                                             meaning of that provision in the case where an
An appeal against the judgment delivered on 15 February                      undertaking gradually transfers the cleaning of its
1 996 by the Third Chamber of the Court of First Instance of                 business premises, hitherto carried out by its own
the European Communities in Case T-589/93 between                            employees , which was so organized that each of those
Susan Ryan-Sheridan and European Foundation for the                          employees was allocated a specific area of its business
Improvement of Living and Working Conditions was                             premises to clean, in such a way that each time a cleaner
brought before the Court of Justice of the European                          retires or is for other reasons no longer able , either
Communities on 15 April 1996 by Susan Ryan-Sheridan,                         temporarily or permanently, to perform her cleaning
represented by Marc-Albert Lucas, of the Liège Bar, with an                  work, her cleaning area is handed over to an outside
address for service in Luxembourg at the Chambers of                         undertaking for the purposes of cleaning ?
Evelyne Korn , Rue de Nassau .
                                                                             Does the reply to that question depend on whether the
The appellant claims that the Court should :                                 gradual transfer to an outside undertaking of entire
— annul the judgment being appealed against ('),                             business premises or at least of a portion of business
                                                                             premises consisting of several cleaning areas is
— itself give judgment in the dispute and annul the                          uniformly made to one and the same undertaking ?
      decisions contested by way of the action which she
      brought before the Court of First Instance, on the basis           2 . If the answer to Question 1 is in the affirmative : is the
      of the pleas and evidence which she submitted to                       first sentence of Article 4 ( 1 ) of Directive 77/87/EEC to
      it ( 2 ),                                                              be interpreted as meaning that notice of termination
                                                                             with an offer of new contractual terms for the purpose
— order the defendant to pay to her Bfr 500 000 by way of                    of reducing the working time of a cleaner is not
      damages,                                                               permissible under that provision if it has been served on
                                                                             the ground that employment to the previous extent is no
— order the defendant to pay the costs of both proceedings,                  longer possible because of an organizational decision,
      including the costs of the procedure for interim relief.               and if the cleaner could, had it not been for the decision
                                                                             to award the work to an outside firm within the meaning
Pleas in law and main arguments                                              of the first question, continue to be employed for the
                                                                             number of hours worked previously by having work
— misuse of powers or at least lack of procedural                            allocated to her to the full extent or additionally which
      impartiality of the Recruitment Committee ,                            in itself, because of the decision to transfer all cleaning
      abuse of process;                                                      areas that fall free, is no longer to be carried out by the
                                                                             undertaking's own employees ?
— invalidity of the internal notice,
      breach of the principle of equal treatment;
                                                                         (') OJ No L 61 , 1977, p . 26 .
— manifest error of assessment,
      breach of the duty to have regard for the welfare of
      officials .
(') OJ No C 95 , 30 . 3 . 1996 , p . 14 .
( 2 ) OJ No C 43 , 12 . 2 . 1994 , p . 18 .
                                                                         Action brought on 17 April 1996 by the Commission of the
                                                                            European Communities against the Kingdom of Spain
                                                                                                ( Case C-124/96 )
                                                                                                  ( 96/C 158/24 )
Reference for a preliminary ruling by the Landesarbeits­
gericht Hamburg by order of that court of 29 March 1996 in
the dispute between Mrs Sultan Bulut and Deutsche                        An action against the Kingdom of Spain was brought before
                               Bundespost                                the Court of Justice of the European Communities on
                                                                         17 April 1 996 by the Commission of the European
                           ( Case C-121 /96 )
                                                                         Communities , represented by Enrico Traversa and
                             ( 96/C 158/23 )                             Francisco Enrique Gonzalez Diaz, of its Legal Service, acting
                                                                         as Agents, with an address for service in Luxembourg at the
Reference has been made to the Court of Justice of the                   office of Carlos Gômez de la Cruz, Wagner Centre,
European Communities by order of the Landesarbeits­                      Kirchberg.
 ---pagebreak--- 1 . 6 . 96             EN                    Official Journal of the European Communities                                 No C 158/ 11
The applicant claims that the Court should :                            quantity had been compiled correctly and had formed
                                                                        the basis of the purchaser's calculation of the additional
                                                                        levy ?
1 , declare that, by providing that VAT exemption for
      services closely linked to sport or physical education
      applies only to private bodies whose membership fees do           Or does that phrase refer only to the amount derived from
      not exceed a specified amount, the Kingdom of Spain               the figures, whether correct or not, declared by the
      has infringed Article 13 ( A ) ( 1 ) ( m ) of the Sixth VAT       purchaser and forming the basis of the calculation of the
      Directive ( 77/388/EEC ) ( M ;                                    additional levy ?
                                                                        If the first interpretation is correct, the question arises
2 , order the Kingdom of Spain to pay the costs .                       whether the entire amount of additional levy lawfully due is
                                                                        payable on the date specified in the Regulation ( at that time
                                                                        30 June ), so that, in the event of part payment resulting from
Pleas in law and main arguments                                         the purchaser's figures being too low, the person liable to
                                                                        pay the additional levy ( in Germany the milk producer ) must
The restriction imposed by the Spanish Law on                           pay, from 1 July of that year, interest charged under national
exemptions ( 2 ) does not appear in the wording of the Sixth            law on the balance .
Directive and must therefore be considered to be an
infringement of Article 13 . The Member States cannot make              (') OJ No L 139 , 4 . 6 . 1988 , p . 12 .
the exemption provided for in Article 13 ( m ) subject to
conditions other than those laid down in Article 13 ( 2 ).
Neither does the Spanish VAT legislation observe the aim set
down in the eighth recital of the preamble to the Sixth
Directive, since the imposition of any condition not
provided for in Article 13 is contrary to the aim of drawing
up a common list of exemptions so that the Communities'
own resources may be collected in a uniform manner in all               Reference for a preliminary ruling from the Tribunale di
the Member States . The Spanish Law thus infringes not only             Genova — Prima Sezione Civile — by order of that court of
Article 1 3 of the Sixth Directive but also the objectives of the       1 February 1996 in the case of Trinity Alimentari Italia SPA
                                                                                    v. Ministero delle Finanze dello Stato
common system of VAT.
                                                                                                 ( Case C-128/96 )
                                                                                                   ( 96/C 158/26 )
(') Sixth Directive 77/388/EEC ( OJ No L 145 , 13 . 6 . 1977,
      P - 1 ).
( 2 ) Law No 37/ 1992 as amended by Law No 42/1994 .                    Reference has been made to the Court of Justice of the
                                                                        European Communities by order of the Tribunale di
                                                                        Genova — Prima Sezione Civile — ( District Court, Genoa ,
                                                                        First Civil Section ) of 1 February 1996 , received at the Court
                                                                        Registry on 22 April 1996 , for a preliminary ruling in the
                                                                        case of Trinity Alimentari Italia SPA v . Ministero delle
                                                                        Finanze dello Stato on questions identical to those in Joined
                                                                        Cases C-47/95 and others ( M.
Reference for a preliminary ruling from the Hessisches
Finanzgericht by order of that court of 26 March 1996 in the             (') OJ No C 119 , 13 . 5 . 1995 , p . 5 .
case of Hartmut Simon v. Hauptzollamt Frankfurt am
                                Main
                         ( Case C-125 /96 )
                           ( 96/C 158/25 )
                                                                               Removal from the register of Case C-82/95 (*)
Reference has been made to the Court of Justice of the
European Communities by an order of the Hessisches                                                  ( 96/C 158/27 )
 Finanzgericht ( Finance Court, Hesse ) of 26 March 1996 ,
which was received at the Court Registry on 18 April 1996 ,              By order of 9 February 1996 the President of the Fifth
 for a preliminary ruling in the case of Hartmut Simon v.                Chamber of the Court of Justice of the European
 Hauptzollamt ( Principal Customs Office ) Frankfurt am                  Communities ordered the removal from the register of Case
 Main, on the following questions :                                      C-82/95 : Commission of the European Communities
                                                                         v. Hellenic Republic .
 In Article 15 ( 4 ) of Commission Regulation ( EEC )
 No 1546/88 of 3 June 1988 ( 1 ) is 'levy amount due' to be              (') OJ No C 137, 3 . 6 . 1995 .
 interpreted as the amount of additional levy on milk that
 would be payable if the figures used to determine the levies
 payable on deliveries in excess of the delivery reference