CELEX: C1996/269/25
Language: en
Date: 1996-09-14 00:00:00
Title: Action brought on 9 July 1996 by the Commission of the European Communities against the Federal Republic of Germany (Case C-236/96)

14 . 9 . 96              EN                   Official Journal of the European Communities                                 No C 269/ 11
— order the Commission to pay the costs of the                           References for a preliminary ruling from the
      proceedings .                                                      Landesarbeitsgericht Hamburg by orders of that court of
                                                                         6 February 1996 in the cases of Agnes Vick v. Deutsche
                                                                           Telekom AG and Ute Conze v. Deutsche Telekom AG
Pleas in law and main arguments adduced in support:
                                                                                       ( Cases C-234/96 and C-235/96 )
                                                                                                    ( 96/C 269/24 )
— Breach of the EC Treaty or of legal rules for its
      implementation : Article 9 ( 2 ), final clause , of Regulation
      ( EEC ) No 859/89 ( 2 ) provides that a tenderer in an             Reference has been made to the Court of Justice of
      invitation to tender concerning the sale of beef or veal           the European Communities by orders of the
      into intervention during the 1991 and 1992 financial               Landesarbeitsgericht Hamburg ( Higher Labour Court,
      years could submit only one tender per category in                 Hamburg ) of 6 February 1996 , which were received at the
      response to each invitation to tender. There is, in the            Court Registry on 9 July 1996 , for preliminary rulings in the
      Danish Government's view, no basis for assuming that               cases of Agnes Vick v. Deutsche Telekom AG and Ute Conze
      the definition of 'a tenderer' in Regulation ( EEC )               v. Deutsche Telekom AG on the following questions :
      No 859/89 must be restricted to cover exclusively
      independent legal persons that are not interconnected .            1 . Do Article 119 of the EC Treaty, the Barber Protocol
      The amendments made to Regulation ( EEC ) No 859/89                    No 2 and the relevant case-law of the Court of Justice of
      by Regulation ( EEC ) No 1282/90 ( 3 ) and Regulation                  the European Communities as primary Community law
      ( EEC ) No 2271 /90 (4 ) demonstrate that the purpose of               have priority over the constitutional law ( Article 3 of
      the provision was at all times to limit the number of                  the Grundgesetz ( Basic Law )) and ordinary law
      tenders per tenderer rather than to limit the number of                ( Paragraph 2 ( 1 ) of the Beschaftigungsforderungsgesetz
      tenderers . It follows neither from the recitals in the                ( Employment Promotion Law ) and the general principle
      preamble nor from the discussions within the                           of equal treatment in labour law ) in force in Germany,
      Management Committee that tenderers should be                          with the consequence that where the factual
      independent of each other . That requirement first arises              requirements are fulfilled for a claim under Article 119
      in the second subparagraph of Article 11 ( 3 ) of                      of the EC Treaty on the ground of indirect sex
      Regulation ( EEC ) No 2456/93 ( 5 ). This means that the               discrimination in connection with an occupational
      Danish authorities were not empowered in 1991 and                      old-age pension scheme because of unfavourable
       1 992 to reject tenders from independent legal persons on             treatment of part-time workers, benefits on the basis of
      the ground that they were not independent of another                   constitutional or ordinary rules of national law can also
      tenderer. It is therefore contrary to Community law for                be claimed only under the same restrictive conditions as
      the Commission to argue that the Danish authorities                    apply to a coincident Community law claim under
      were under such an obligation and for it, on the basis of              Article 1 1 9 of the EC Treaty, so that, in divergence from
      that contention, to refuse to allow EAGGF financing of                 the legal assessment otherwise applicable under national
      notified expenditure resulting from a tender effected in               law, even on the basis of grounds of claim under
      accordance with Community law in force .                               national law benefits are owed only for periods of
                                                                             employment after 17 May 1990, subject to the
      In any event, the EAGGF has not incurred a loss in the                 exception for employees who have initiated legal
      present case , and the Commission's straight reduction of              proceedings or introduced an equivalent claim before
      2 % in the expenditure which Denmark notified for                      that date ?
      EAGGF financing therefore amounts to a breach of the
      Treaty or of legal rules for its implementation .                  2 . Does that also apply where , under the concurrent
                                                                             national law basis , there is a claim to equal treatment
— Absence of reasons .                                                       simply because there is objectively unjustified
                                                                             unfavourable treatment because of working part time ,
                                                                             without it being relevant whether there is also indirect
(') OJ No L 117, 14 . 5 . 1996 , p . 19 .                                    sex discrimination on the basis of a numerically
( 2 ) Commission Regulation ( EEC ) No 859/89 of 29 March 1989               proportionally greater unfavourable treatment of
      laying down detailed rules for the application of intervention         women workers ?
      measures in the beef and veal sector ( OJ No L 91 , 4 . 4 . 1989 ,
      p. 5 ).
(') Commission Regulation ( EEC ) No 1282/90 of 15 May 1990
      amending Regulation ( EEC ) No 859/89 ( OJ No L 126 , 16 . 5 .
      1990 , p. 31 ).
(4 ) Commission Regulation ( EEC ) No 2271 /90 of 1 August 1990
      amending Regulation ( EEC ) No 859/ 89 ( OJ No L 204 , 2 . 8 .
      1990 , p. 45 ).
                                                                         Action brought on 9 July 1996 by the Commission of the
(5 ) Commission Regulation ( EEC ) No 2456/93 of 1 September             European Communities against the Federal Republic of
      1993 laying down detailed rules for the application of Council                                    Germany
      Regulation ( EEC ) No 805/68 as regards the general and special                             ( Case C-236/96 )
      intervention measures for beef ( OJ No L 225 , 4 . 9 . 1993 ,
      P - 4 ).                                                                                       ( 96/C 269/25 )
                                                                         An action against the Federal Republic of Germany was
                                                                          brought before the Court of Justice of the European
 ---pagebreak--- No C 269/ 12             EN                    Official Journal of the European Communities                                      14 . 9 . 96
Communities on 9 July 1996 by the Commission of the                       competent authorities of a Member State are to have the
European Communities, represented by Gotz zur Hausen ,                    same force in other Member States as findings of the
Legal Adviser to the Commission of the European                           competent authorities of each of those Member States ?
Communities, with an address for service in Luxembourg at
the office of Carlos Gomez de la Cruz, of the Legal Service of            (>) OJ No L 38 , 9 . 2 . 1977 , p . 1 .
the Commission, Wagner Centre C 254 , Kirchberg .                         ( 2 ) OJ No L 38 , 9 . 2 . 1977 , p . 20 .
The applicant claims that the Court should :
— declare that, by failing within the prescribed period to
       adopt the measures necessary in order to comply with
       Council Directive 91 / 157/EEC of 18 March 1991 on
       batteries and accumulators containing certain                      Action brought on 10 July 1996 by Ireland against the
       dangerous substances (') and Commission Directive                             Commission of the European Communities
       93/86/EEC ( 2 ) of 4 October 1993 adapting the                                                 Case C-238/96 )
       aforementioned Council Directive to technical progress,                                         96/C 269/27 )
       the Federal Republic of Germany has failed to fulfil its
       obligations under the EC Treaty,
                                                                          An action against the Commission of the European
— order the Federal Republic of Germany to pay the                        Communities was brought before the Court of Justice of the
       costs .                                                            European Communities on 10 July 1996 by Ireland,
                                                                          represented by Michael A. Buckley, Chief State Solicitor, of
Pleas in law and main arguments adduced in support:                       Dublin Castle, Dublin 2 , acting as Agent of Ireland, assisted
                                                                          by Mary Finlay, Senior Counsel and David Barniville,
                                                                          Barrister-at-Law, with an address for service of documents
The mandatory nature of the provisions of the third
paragraph of Article 189 and the first paragraph of Article 5             in Luxembourg at the Embassy of Ireland , 28 route d'Arlon,
of the EC Treaty is such as to oblige Member States to whom               Luxembourg.
directives are addressed to adopt the measures necessary for
the implementation of such directives within the time limits              The applicant claims that the Court should :
prescribed therein . The time limits in question expired on
 18 September 1992 and 31 December 1993 respectively but                  — declare, pursuant to Article 173 of the Treaty
the Federal Republic of Germany has not to date adopted                         establishing the European Community, that
the necessary transposition measures .                                          Commission Decision 96/31 1 /EC of 10 April 1996 on
                                                                                the clearance of accounts presented by Member States in
(') OJ No L 78 , 26 . 3 . 1991 , p . 38 .                                       respect of expenditure for 1 992 of the Guarantee Section
 ( 2 ) OJ No L 264 , 23 . 10 . 1993 , p . 51 .                                  of the European Agricultural Guidance and Guarantee
                                                                                Fund and in respect of certain expenditure for 1 993 ( 1 ) is
                                                                                void in so far as it purports to disallow a sum of £ Irl
                                                                                26 222 656,62 ( being 10 % of the expenditure declared
                                                                                by Ireland for public storage of beef for 1990 ) from the
                                                                                expenditure declared by Ireland for public storage of
Reference for a preliminary ruling from the Cour d'Appel,                       beef for 1992,
Mons, by judgment of that court of 28 June 1 996 in the case
 of Ministre des Finances du Royaume de Belgique v.                        — declare, pursuant to Article 173 of the Treaty
                      E. Amelynck and Others                                    establishing the European Community, that
                           ( Case C-237/96 )                                     Commission Decision 96/31 1 /EC of 10 April 1996 on
                                                                                the clearance of accounts presented by Member States in
                             ( 96/C 269/26 )
                                                                                 respect of expenditure for 1992 of the Guarantee Section
                                                                                 of the European Agricultural Guidance and Guarantee
 Reference has been made to the Court of Justice of the                          Fund and in respect of certain expenditure for 1993 is
 European Communities by a judgment of the Cour d'Appel                         void in so far as it purports to disallow a sum of £ Irl
  ( Court of Appeal ), Mons, of 28 June 1996 , which was                         24 020 455,64 ( being 5 % of the expenditure declared
  received at the Court Registry on 9 July 1996 , for a                          by Ireland for public storage of beef for 1991 ) from the
 preliminary ruling in the case of Ministre des Finances du                      expenditure declared by Ireland for public storage of
  Royaume de Belgique v. E. Amelynck and Others on the                           beef for 1992 ,
  following question :
                                                                           — declare, pursuant to Article 173 of the Treaty
  Are Regulations ( EEC ) No 222/77 (') and ( EEC )                              establishing the European Community, that
  No 223/77 ( 2 ), which lay down the rule that evidence of the                  Commission Decision 96/31 1 /EC of 10 April 1996 on
  Community nature of goods is, without exception , to be                        the clearance of accounts presented by Member States in
  furnished solely by transit document T2 or T2 L, consistent                    respect of expenditure for 1 992 of the Guarantee Section
  with Articles 9 and 10 of the EC Treaty and are they                           of the European Agricultural Guidance and Guarantee
  compatible with Articles 37 ( 2 ) and 39 ( 2 ) of Regulation                   Fund and in respect of certain expenditure for 1993 is
  ( EEC ) No 222/77, which provide that the findings of the                      void in so far as it purports to disallow the sum of £ Irl