CELEX: C1997/228/17
Language: en
Date: 1997-07-26 00:00:00
Title: Reference for a preliminary ruling by the Højesteret by order of 3 June 1997 in the case of Centros Limited v. Erhvervs- og Selskabsstyrelsen (Case C-212/97)

No C 228/8              EN                 Official Journal of the European Communities                                      26 . 7 . 97
        establishment of the CIS, to rely on Article 235              Reference for a preliminary ruling from the Landessozial­
         (quod non), nevertheless, the legal basis of the             gericht Niedersachsen by order of that court of 22 May
        provisions relating to mutual assistance on request           1997 in the case of Paula Gomez-Rivero v. Bundesanstalt
         and spontaneous assistance should have been                       fur Arbeit, joined party: Federal Republic of Germany
        Article 100a . In Case C-300/89, the Court of                                           ( Case C-211/97)
        Justice held that an act may not have a dual legal
                                                                                                  ( 97/C 228/ 16 )
         basis where one of those bases corresponds to the
        cooperation procedure ( Article 189b of the EC
        Treaty) and the other requires unanimity, inasmuch            Reference has been made to the Court of Justice of the
         as that would undermine the very purpose of the              European Communities by an order of the Landessozial­
        cooperation procedure, thereby divesting it of its            gericht Niedersachsen (Higher Labour Court, Lower
         substance,                                                   Saxony ) of 22 May 1997, which was received at the Court
                                                                      Registry on 4 June 1997, for a preliminary ruling in the
     — the Regulation lays down the organizational
                                                                      case of Paula Gomez-Rivero v. Bundesanstalt fiir Arbeit,
        measures needed for the requisite cooperation
         between them and the Commission, with a view to
                                                                      joined party: Federal Republic of Germany, on the
                                                                      following questions:
         ensuring the functioning of the internal market,
     — no other specific legal basis exists in the Treaty;            ( a ) Does the option by a person employed by a consular
        this would appear to be confirmed by the fact that                   post under the first sentence of Article 16 ( 2 ) of
         the Council has had recourse to Article 235                         Regulation ( EEC ) No 1408/71 H to be subject to the
         thereof.                                                            legislation of the sending Member State of which he is
                                                                             a national also have effect for his spouse, not
(') OJ No L 82, 22 . 3 . 1997, p . 1 .                                       employed by the consular service, who is also a
                                                                             national of the sending Member State,
                                                                             or
                                                                             is the legislation of the sending Member State
Reference for a preliminary ruling by the Verwaltungsge­
richt Köln by order of that court of 6 May 1997 in the                       applicable to the spouse only if she herself also opts to
                                                                             be subject to it ?
case of Haydar Akman against the Oberkreisdirektor des
Rheinisch-Bergischen-Kreises, Joined party: Vertreter des
    öffentlichen Interesses beim Verwaltungsgericht Köln              ( b ) If the option by the national who is in the consular
                                                                             service also has effect for his spouse, does the
                         ( Case C-210/97 )
                                                                             effectiveness of the option to be subject to the
                           ( 97/C 228/15 )                                   legislation of the sending Member State presuppose
                                                                             the consent or other cooperation of the spouse who is
Reference has been made to the Court of Justice of the                       also affected thereby ?
European Communities by order of the Verwaltungsge­
richt Koln (Administrative Court, Cologne ) of 6 May                  (') OJ , English Special Edition 1971 ( II ), p. 416 .
1997, received at the Court Registry on 2 June 1997, for a
preliminary ruling in the case of Haydar Akman against
the Oberkreisdirektor des Rheinisch-Bergischen-Kreises
( Chief Administrative Officer of the administrative district
Rheinisch-Bergischer-Kreis ), Joined party: Vertreter des             Reference for a preliminary ruling by the Hojesteret by
offentlichen Interesses beim Verwaltungsgericht Koln                  order of 3 June 1997 in the case of Centros Limited v.
( Representative of the Public Interest before the                                       Erhvervs- og Selskabsstyrelsen
Administrative Court, Cologne ), on the following
question:                                                                                       ( Case C-212/97)
                                                                                                  ( 97/C 228/ 17 )
For a child of a Turkish worker to have the right to
extension of his residence permit, which, according to the
                                                                      Reference has been made to the Court of Justice of the
judgment of the Court of Justice in Case C-355/93 Eroglu
                                                                      European Communities by order of 3 June 1997 from the
v. Land Baden-Wiirttemberg ('), arises from the second
                                                                      Hojesteret ( Danish Supreme Court), which was received at
paragraph of Article 7 of Decision No 1/80 of the
                                                                      the Court Registry on 5 June 1997, for a preliminary
EEC-Turkey Association Council on the development of
the Association, must the employed parent still be resident           ruling in the case of Centros Limited v. Erhvervs- og
                                                                      Selskabsstyrelsen ( Trade and Companies Board) on the
in Germany, or even still be in an employment
                                                                      following question:
relationship, at the time when the child has completed his
course of vocational training, or is that provision
sufficiently complied with if the Turkish parent was legally          Is it compatible with Article 52 of the EC Treaty, in
employed at an earlier time for at least three years ?                conjunction with Articles 58 and 56 thereof, to refuse
                                                                      registration of a subsidiary of a company which has its
O [ 1994] ECR 1-5113 .                                                registered office in another Member State and has been
                                                                      lawfully founded with company capital of £ 100
                                                                       ( approximately Dkr 1 000 ) and established under the
 ---pagebreak--- 26 . 7. 97              EN                  Official Journal of the European Communities                                  No C 228/9
legislation of that Member State, where the company does               — by not providing for limit values for emissions for the
not itself carry on any business but it is desired to set up                 discharge of certain substances by industrial plant not
the subsidiary in order to carry on the entire business in                   listed under heading A of Annex II to the Directive,
the country in which the subsidiary is established, and
where, instead of incorporating a company in the latter                — by not transposing Article 3 ( 5 ) of the Directive
Member State, that procedure must be regarded as having                      concerning the reference method of analysis to be used
been employed in order to avoid paying in company                            in determining the presence of the substances referred
capital of not less than Dkr 200 000 ( at present Dkr                        to in Article 2 ( a ),
125 000 )?
                                                                       — by not transposing point 5 of heading A of Annex I to
                                                                             the Directive on the monitoring procedure to be
                                                                              instituted to check whether the discharges of the
                                                                             substances referred to in Article 2 ( a ) comply with the
                                                                             emission standards,
Action brought on 4 June 1997 by the Commission of the
  European Communities against the Portuguese Republic                 — by not drawing up any specific programme to avoid or
                          ( Case C-213/97 )                                  eliminate pollution arising from the sources of
                            ( 97/C 228/18 )                                   significant discharges which are specifically mentioned
                                                                              in Annex II,
An action against the Portuguese Republic was brought                  the defendant did not bring national law into line with the
before the Court of Justice of the European Communities                Directive, so that its transposition must be considered to
on 4 June 1997 by the Commission of the European                       be erroneous and incomplete .
Communities, represented by Francisco de Sousa Fialho,
of its Legal Service, acting as Agent, with an address for             O OJNoL 181 , 4 . 7. 1986 , p. 16 .
service in Luxembourg at the office of Carlos Gomez de la              ( 2 ) OJ No L 158 , 25 . 6 . 1988 , p . 35 .
Cruz, Wagner Centre, Kirchberg.                                        ( 3 ) OJ No L 129, 18 . 5 . 1976 , p . 23 .
The applicant claims that the Court should :
— declare that, by failing to adopt all the laws,
      regulations or administrative provisions necessary to            Action brought on 4 June 1997 by the Commission of the
      comply fully and properly with Council Directive 86/                 European Communities against the Portuguese Republic
      280/EEC (') of 12 June 1986, as amended by Council                                           ( Case C-214/97)
      Directive 88/347/EEC (2 ) of 16 June 1988 , on limit
      values and quality objectives for discharges of certain                                        ( 97/C 228/19 )
      dangerous substances included in List I of the Annex
      to Directive 76/464/EEC (3 ), the Portuguese Republic            An action against the Portuguese Republic was brought
      has failed to fulfil its obligations under the third             before the Court of Justice of the European Communities
      paragraph of Article 189 of the EC Treaty and                    on 4 June 1997 by the Commission of the European
      Articles 7 and 2 of Directives 86/280/EEC and 88/347/            Communities, represented by Francisco de Sousa Fialho,
      EEC respectively,                                                of its Legal Service, acting as Agent, with an address for
                                                                       service in Luxembourg at the office of Carlos Gomez de la
— declare, in the alternative, that, by failing forthwith to           Cruz, Wagner Centre, Kirchberg.
      inform the       Commission      of such measures,      the
      Portuguese Republic failed to fulfil its obligations             The applicant claims that the Court should:
      under those provisions,
                                                                       — declare that, by failing to adopt and bring into force
— order the Portuguese Republic to pay the costs.                             within the prescribed period the laws, regulations or
                                                                              administrative provisions necessary to comply with
                                                                              Council Directive 75/440/EEC of 16 June 1975
 Pleas in law and main arguments adduced in support:
                                                                              concerning the quality required of surface water
                                                                              intended for the abstraction of drinking water in the
 The Commission finds that the Portuguese Republic has                        Member States ( ! ), inasmuch as it did not draw up a
 failed to fulfil its obligations inasmuch as :                               systematic plan of action including a timetable for the
                                                                              improvement of surface water, the Portuguese
 — by providing, by virtue of Article 44 ( 3 ) of Decree                      Republic has failed to fulfil its obligations under the
      Law No 74/90, that the competent authorities for the                    third paragraph of Article 189 of the EC Treaty and
      granting of authorizations may fix emission standards                   the provisions of Directive 75/440/EEC,
      which are less stringent than those set out under
      heading A of the Annexes to the Directive and by not             — declare, in the alternative, that, by failing forthwith to
      providing for any mandatory review of such                               inform the Commission of such measures, the
      authorizations ( infringement of Article 3 ( 3 ) of the                  Portuguese Republic failed to fulfil its obligations
      Directive ),                                                             under those provisions,