CELEX: C1999/366/31
Language: en
Date: 1999-12-18 00:00:00
Title: Case C-379/99: Reference for a preliminary ruling by the Bundesarbeitsgericht by order of that court of 23 March 1999 in the case of Pensionskasse für die Angestellten der Barmer Ersatzkasse VVAG v Hans Menauer

18.12.1999              EN                   Official Journal of the European Communities                                      C 366/19
     under tariff headings 2 1 1 1, 2 1 1 2 and 2 1 1 3. Since          Pleas in law and main arguments
     the expenditure declared by Spain under tariff heading
     2 1 1 3 was negative, it was considered that the Com-
     mission would not take account of that line for the                The action is directed against the fact that the contested
     purposes of the calculation of the total amount of the             decision charged to the Federal Republic of Germany, with
     financial adjustment. However, the adjustment in respect           respect to Mecklenburg-Vorpommern, instead of a financial
     of heading 2 1 1 3 made by the Commission corresponds              correction of 2 % a correction of 5 %, and hence an amount in
     solely to the item relating to purchases and not to the total      excess of DEM 12 157 646,13, namely DEM 18 236 469,20,
     amount of expenditure declared by Spain under the tariff           for 1995 for the arable crops sector.
     heading during the financial year, which significantly
     increases the proposed adjustment, thus departing from
     the letter of the official communication.                          The Commission was not able, in the annex to the Summary
                                                                        Report, to produce any comprehensible and substantiated
                                                                        reasons to show that the entire ‘on-the-spot control’ measure
(C) The differences found during the prior inspection referred
                                                                        in Mecklenburg-Vorpommern was defective and that all the
     to in the summary report are similar to those detected in
                                                                        defects taken together led to a substantial risk of loss for the
     other Member States, where the percentage applied in the
                                                                        EAGGF, justifying a correction of 5 %. In particular, it was
     financial adjustment has been only 2 % as opposed to the
                                                                        unable, on the basis of its inspection visit to Mecklenburg-
     5 % applied to Spain.
                                                                        Vorpommern in 1998, to adduce any new facts capable of
                                                                        justifying that assessment.
(1) OJ L 182 of 16 July 1994, p. 45.
                                                                        The increase of the financial correction from 2 % to 5 % by
                                                                        the Commission is unlawful because the Commission complied
                                                                        neither with the principle that the administrative authorities
                                                                        are bound by the reservation they formulated nor with the
                                                                        necessary procedural rules with respect to the procedure
                                                                        for closure of the accounts, in particular arbitration. The
                                                                        Commission further incorrectly exercised its discretion with
                                                                        respect to assessment of the defects actually found.
Action brought on 7 October 1999 by the Federal Repub-                  Altogether, the Commission has not shown conclusively why
lic of Germany against the Commission of the European                   in its definitive fixing of the financial correction it departed
                            Communities                                 both from its originally intended rate of correction and from
                                                                        the rate proposed by the arbitration body of not more than
                                                                        2 %.
                          (Case C-377/99)
                          (1999/C 366/30)
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 7 October 1999 by the Federal Republic of
Germany, represented by Wolf-Dieter Plessing, Ministerialrat,
and Claus-Dieter Quassowski, Regierungsdirektor, of the Feder-          Reference for a preliminary ruling by the Bundesarbeits-
al Ministry of Financial Affairs, 108 Graurheindorfer Strasse,          gericht by order of that court of 23 March 1999 in the
D-53117 Bonn.                                                           case of Pensionskasse für die Angestellten der Barmer
                                                                                     Ersatzkasse VVAG v Hans Menauer
The applicant claims that the Court should:
                                                                                                (Case C-379/99)
— Annul Commission Decision COM(1999) 2476 fin. of
     28 July 1999 amending Decision 1999/187/EC on the
     clearance of the accounts presented by the Member States                                   (1999/C 366/31)
     in respect of the expenditure for 1995 of the Guarantee
     Section of the European Agricultural Guidance and
                                                                        Reference has been made to the Court of Justice of the
     Guarantee Fund (EAGGF) in so far as under Article 2 the
                                                                        European Communities by order of the Bundesarbeitsgericht
     sum of DEM 18 236 469,20 is not accepted by the EAGGF
                                                                        (Federal Labour Court) of 23 March 1999, received at the
     but charged to the Federal Republic of Germany;
                                                                        Court Registry on 7 October 1999, for a preliminary ruling in
                                                                        the case of Pensionskasse für die Angestellten der Barmer
— Order the defendant to pay the costs.                                 Ersatzkasse VVAG v Hans Menauer on the following question:
 ---pagebreak--- C 366/20                EN                     Official Journal of the European Communities                                     18.12.1999
Must Article 119 of the EC Treaty [Articles 117 to 120 of the             Pleas in law and main arguments
Treaty have been replaced by Articles 136 EC to 143 EC] be
interpreted to mean that pension funds must be considered to              The third paragraph of Article 249 EC requires each Member
be employers and are obliged to treat men and women equally               State to which a directive is addressed to transpose the
as regards payments of occupational old-age pensions, even                provisions thereof into national law within the time-limit
though disadvantaged employees have a claim, which is                     prescribed for that purpose, in such a way as to give full effect
protected in the event of insolvency and therefore precludes              thereto. The time-limit laid down in Article 3 of the directive
discrimination, against the body directly responsible for pro-            expired on 31 May 1998, but Germany has not adopted the
vision of a pension, that is to say their employer as a party to          necessary measures in that regard.
the employment contract.
                                                                          (1) OJ L 265 of 18.10.1996, p. 17.
                                                                          Action brought on 8 October 1999 by the Commission
                                                                          of the European Communities against the Federal Repub-
                                                                                                    lic of Germany
Action brought on 8 October 1999 by the Commission
of the European Communities against the Federal Repub-                                             (Case C-387/99)
                            lic of Germany
                                                                                                   (1999/C 366/33)
                           (Case C-386/99)
                                                                          An action against the Federal Republic of Germany was
                                                                          brought before the Court of Justice of the European Communi-
                          (1999/C 366/32)                                 ties on 8 October 1999 by the Commission of the European
                                                                          Communities, represented by Claudia Schmidt, of its Legal
                                                                          Service, acting as Agent, with an address for service in
An action against the Federal Republic of Germany was                     Luxembourg at the office of Carlos Gómez de la Cruz, of its
brought before the Court of Justice of the European Communi-              Legal Service, Wagner Centre C 254, Kirchberg.
ties on 8 October 1999 by the Commission of the European
Communities, represented by Claudia Schmidt, of its Legal                 The applicant claims that the Court should:
Service, acting as Agent, with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, of its              (1) declare that, by classifying as medicinal products vitamin
Legal Service, Wagner Centre C 254, Kirchberg.                                 and mineral nutrient preparations which have been law-
                                                                               fully produced and/or placed on the market as food
                                                                               supplements in other Member States, where the daily dose
The applicant claims that the Court should:                                    of such vitamins and minerals is more than three times
                                                                               that recommended by the German Gesellschaft für Ernäh-
                                                                               rung, the Federal Republic of Germany has infringed its
(1) declare that, by failing to adopt the laws, regulations and                obligations under Article 28 EC;
     administrative measures necessary in order to comply with
     Commission Directive 96/65/EC (1) of 11 October 1996                 (2) order the defendant to pay the costs.
     adapting to technical progress for the fourth time Council,
     Directive 88/379/EEC on the approximation of the laws,
     regulations and administrative provisions of the Member              Pleas in law and main arguments
     States relating to the classification, packaging and labelling
     of dangerous preparations and modifying Directive                    Infringement of Article 28 EC: the obstacle to trade resulting
     91/442/EEC on dangerous preparations the packaging of                from the practice followed by the German administrative
     which must be fitted with child-resistant fastenings, the            authorities and courts cannot be justified on grounds of public
     Federal Republic of Germany has failed to fulfil its                 health or consumer protection, since that practice is not in
     obligations under the third paragraph of Article 249 EC in           accordance with the principle of proportionality. It is an
     conjunction with Article 3(1) of that directive;                     established scientific fact that the threshold at which increasing
                                                                          doses of vitamins become harmful is not reached at the same
                                                                          rate in the case of all vitamins. Consequently, to regard all
(2) alternatively, declare that the Federal Republic of Germany           vitamins in global/abstract terms, in such a way as necessarily
     has failed to fulfil its obligation to notify the Commission         to apply the strictest criterion, is to go beyond what is
     without delay of the measures taken to transpose the                 necessary and permissible in order to achieve the goal of health
     directive;                                                           protection under Community law; it is disproportionate.
(3) order the Federal Republic of Germany to pay the costs.