CELEX: C1997/271/02
Language: en
Date: 1997-09-06 00:00:00
Title: JUDGMENT OF THE COURT (Fifth Chamber) of 10 July 1997 in Case C-261/95 (reference for a preliminary ruling from the Pretura Circondariale, Frosinone): Rosalba Palmisani v. Istituto Nazionale della Previdenza Sociale (INPS) (Social policy - Protection of employees in the event of the insolvency of their employer - Council Directive 80/987/EEC - Liability of a Member State arising from belated transposition of a directive - Adequate reparation - Limitation period)

C 271 /2                 EN                 Official Journal of the European Communities                                        6 . 9 . 97
                JUDGMENT OF THE COURT                                                   JUDGMENT OF THE COURT
                          ( Fifth Chamber )                                                     of 17 July 1997
                           of 10 July 1997                             in Case C-28/95 (reference for a preliminary ruling from
                                                                       the Gerechtshof, Amsterdam ): A. Leur-Bloem v. Inspecteur
in Case C-261/95 (reference for a preliminary ruling from                  der Belastingdienst/Ondernemingen Amsterdam 2 (')
the Pretura Circondariale, Frosinone ): Rosalba Palmisani              (Article 177 — Jurisdiction of the Court — National
   v. Istituto Nazionale della Previdenza Sociale (INPS ) (M           legislation       adopting     Community provisions              —
(Social policy — Protection of employees in the event of               Transposition — Directive 90/434/EEC — Merger by
                                                                              exchange of shares — Tax evasion or avoidance)
the insolvency of their employer — Council Directive 80/
987/EEC — Liability of a Member State arising from                                               ( 97/C 271 /03 )
belated transposition of a directive — Adequate reparation
                        — Limitation period)
                                                                                         (Language of the case: Dutch)
                            ( 97/C 271 /02
                                                                         (Provisional translation; the definitive translation will be
                 (Language of the case: Italian)                                  published in the European Court Reports)
                                                                       In Case C-28/95 : reference to the Court under Article 177
                                                                       of the EC Treaty from the Gerechtshof te Amsterdam, for
  (Provisional translation; the definitive translation will be         a preliminary ruling in the proceedings pending before
           published in the European Court Reports)                    that court between A. Leur-Bloem and Inspecteur der
                                                                       Belastingdienst/Ondernemingen Amsterdam 2 — on the
                                                                       interpretation of Articles 2 ( d ) and 11 ( 1 ) ( a ) of Council
                                                                       Directive 90/434/EEC of 23 July 1990 on the common
In Case C-261 /95 : reference to the Court under Article 177           system of taxation applicable to mergers, divisions,
of the EC Treaty from the Pretura Circondariale (District              transfers of assets and exchanges of shares concerning
Magistrate's Court), Frosinone ( Italy ), for a preliminary            companies of different Member States ( OJ L 225 , 20 . 8 .
ruling in the proceedings pending before that court                    1990, p. 1 ) — the Court, composed of: G. C. Rodriguez
between Rosalba Palmisani and Istituto Nazionale della                 Iglesias, President, G. F. Mancini, J. C. Moitinho de
Previdenza Sociale ( INPS ) — on the interpretation of                 Almeida, J. L. Murray and L. Sevon ( Presidents of
Article 5 of the EC Treaty and of the principle of State               Chambers ), C. N. Kakouris, P. J. G. Kapteyn, C.
liability for loss or damage caused to individuals by a                Gulmann, D. A. O. Edward, J. -P. Puissochet, G. Hirsch, P.
breach of Community law attributable to the State — the                Jann ( Rapporteur) and H. Ragnemalm, Judges; F. G.
Court ( Fifth Chamber ), composed of: J. C. Moitinho de                Jacobs, Advocate General; H. A. Riihl, Principal
Almeida, President of the Chamber, L. Sevon, D. A. O.                  Administrator, for the Registrar, has given a judgment on
Edward, P. Jann and M. Wathelet ( Rapporteur), Judges;                 17 July 1997, in which it has ruled :
G. Cosmas, Advocate General ; L. Hewlett, Administrator,
for the Registrar, has given a judgment on 10 July 1997,
in which it has ruled :                                                1 . The Court of Justice has jurisdiction under Article 177
                                                                            of the EC Treaty to interpret Community law where
                                                                            the situation in question is not governed directly by
                                                                            Community law but the national legislature, in
Community law, as it stands at present, does not preclude                   transposing the provisions of a directive into domestic
a Member State from requiring any action for reparation                     law, has chosen to apply the same treatment to purely
of the loss or damage sustained as a result of the belated                  internal situations and to those governed by the
transposition of Council Directive 80/987/EEC of                            directive, so that it has aligned its domestic legislation
20 October 1980 on the approximation of the laws of the                     to Community law.
Member States relating to the protection of employees in
the event of the insolvency of their employer to be
brought within a limitation period of one year from the                2 . ( a ) Article 2 (d) of Council Directive 90/434/EEC of
date of its transposition into national law, provided that                       23 July 1990, on the common system of taxation
that procedural requirement is no less favourable than                           applicable to mergers, divisions, transfers of assets
procedural requirements in respect of similar actions of a                       and exchanges of shares concerning companies of
domestic nature.                                                                 different Member States, does not require the
                                                                                 acquiring company, within the meaning of
                                                                                 Article 2 (h) of the Directive, to carry on business
(') OJ C 268 , 14 . 10 . 1995 .                                                  itself or there to be a permanent merger, from the
                                                                                 financial and economic point of view, of the
                                                                                 business of two companies into a single unit.
                                                                                 Similarly, the fact that the same natural person
                                                                                 who was the sole shareholder and director of the