CELEX: C2001/331/11
Language: en
Date: 2001-11-24 00:00:00
Title: Case C-341/01: Reference for a preliminary ruling, by order of the Landesgericht Korneuburg of 4 September 2001 in the case of Pato Plastik Robert Frank GmbH v CAROPACK Handelsgesellschaft mbH

24.11.2001             EN                    Official Journal of the European Communities                                          C 331/7
Reference for a preliminary ruling by the Oberster                      (Regional Court) Korneuburg of 4 September 2001, which was
Gerichtshof, Republic of Austria, by order of that court                received at the Court Registry on 11 September 2001, for a
on 25 June 2001, in the case of Carlito Abler and                       preliminary ruling in the case of Pato Plastik Robert Frank
21 others, intervener: Sanrest Großküchen-Betriebsge-                   GmbH v CAROPACK Handelsgesellschaft mbH on the follow-
sellschaft mbH against Sodexho MM Catering Gesellschaft                 ing questions:
                         (Case C-340/01)
                                                                        1.1. Are plastic carrier bags ‘packaging’ within the meaning
                                                                              of European Parliament and the Council Directive
                         (2001/C 331/10)                                      94/62/EC 20 December 1994 (1), particularly Article 3(1)
                                                                              thereof,
Reference has been made to the Court of Justice of the                        (a)    if a retailer offers them as an article in the cash-
European Communities by order of the Oberster Gerichtshof,                           desk area and hands them over to customers upon
Republic of Austria (Supreme Court) of 25 June 2001, received                        request against payment so that the purchased
at the Court Registry on 10 September 2001, for a preliminary                        goods can be taken away, or
ruling in the case of Carlito Abler and 21 others, intervener:
Sanrest Großküchen-Betriebsgesellschaft mbH against Sodex-
ho MM Catering Gesellschaft, on the following question:
                                                                              (b) if a retailer hands them over to customers for the
                                                                                     same purpose after the price has been paid for the
Is there a transfer of part of a business within the meaning of                      purchased goods, regardless whether customers ask
Article 1 of Council Directive 77/187/EEC of 14 February                             for them and without obligatory payment of any
1977 (1) on the approximation of the laws of the Member                              extra charge, and they are then filled with the
States relating to the safeguarding of employees’ rights in the                      purchased goods?
event of transfers of undertakings, businesses or parts of
businesses where a hospital authority, which has previously
employed a catering undertaking to supply meals and bever-
ages to patients and hospital staff at a price based on a day of        1.2.1. First additional question, in the event that one of the
catering per person, and to that end has made available to that                 above questions is answered in the affirmative on the
undertaking water and energy as well as its service premises                    basis of the German version:
(hospital kitchen) together with the necessary equipment,
transfers, after giving notice of termination of that contract,
those operations and the assets previously made available to                    Is the result different if, for the definition of the word
that first catering undertaking to a second catering undertaking                ‘packaging’ in Article 3(1) of the Directive, not the
which does not take over the assets (staff, stock, accounting                   German text, which only has the words ‘von Waren’,
material and menu, diet, recipe or general records) brought in                  but the French or Italian text [Or. 2] is deemed decisive,
by the first catering undertaking itself?                                       which both refer to specific goods (‘marchandises
                                                                                données’ and ‘determinate merci’), and are the plastic
                                                                                carrier bags made by the plaintiff in this case not
(1) OJ 1997 L 61, p. 26.                                                        packaging for the purposes of the Directive because
                                                                                they are filled with any goods at all (rather than with
                                                                                predetermined goods), and in this case which text
                                                                                applies?
                                                                        1.2.2. Second additional question, in the event that one of
                                                                                the above questions is answered in the negative:
Reference for a preliminary ruling, by order of the
Landesgericht Korneuburg of 4 September 2001 in the
case of Pato Plastik Robert Frank GmbH v CAROPACK                               May the Austrian legislature or the Commission make
                    Handelsgesellschaft mbH                                     products which are not packaging under the Directive
                                                                                subject to the rules governing packaging laid down in
                         (Case C-341/01)                                        the Directive or to similar rules?
                         (2001/C 331/11)                                2.   Is it in conformity with Community law for the operator
                                                                             of the collection and recovery system set up in Austria to
                                                                             charge a fee (Lizengebühr) even for carrier bags not
                                                                             covered by Directive 94/62/EC solely on the ground that
Reference has been made to the Court of Justice of the                       the bags bear a mark (‘der Grüne Punkt’) over which the
European Communities by order of the Landesgericht                           operator disposes?
 ---pagebreak--- C 331/8                EN                     Official Journal of the European Communities                                   24.11.2001
3.1. Is a ‘producer’, within the meaning of Article 3(1) of the               Directive, is ‘essential’, because everything marked with
      Directive, only someone who brings goods into contact                   the ‘Grüner Punkt’ symbol is mixed together and, above
      with the product used as packaging or has them brought                  all, takes away from consumers the right, granted and
      into contact, and not also an undertaking which makes                   guaranteed to consumers by the Sixth VAT Directive, to
      a product intended for use as packaging, and is this                    a VAT rate reduced by half or a lower rate for the disposal
      product then to be regarded as packaging material?                      of their household waste?
                                                                         7.   May the Austrian Packaging Regulation arrange the
                                                                              collection and recovery systems required by Article 7(1)of
                                                                              the Directive in such a way that a monopolist or an
3.2. Additional question, in the event that the preceding
                                                                              oligopolist can have power of disposal over all packaging
      question is answered in the affirmative: May the Austrian
                                                                              waste to be recycled into raw materials and so, by
      legislature or the Commission compel traders who
                                                                              providing subsidies to particular businesses, to particular
      merely make packaging material, that is to say a product
                                                                              branches of industry (for example the cement industry)
      which is intended to be filled with goods, to participate
                                                                              or to certain local authorities (for example, the City of
      in a collection and recovery system set up pursuant to
                                                                              Vienna), can control and subsidise the recycling of
      Article 7(1) of Directive 94/62/EC?
                                                                              waste as it wishes, thereby producing distortions of
                                                                              competition, or is such a system contrary to Community
                                                                              law, in particular Article 30 et. seq. and especially
                                                                              Article 37 EC?
4.   Is it contrary to the ‘polluter pays’ principle referred to in
     the preamble to Directive 94/62/EC for a law to provide,
     as does the first sentence of Paragraph 3(1) of the                 (1) OJ 1994 L 365, p. 10.
     Austrian Verpackungsverordnung (Austrian Packaging
     Regulation), that producers, in particular producers of
     packaging material (see paragraph 3(1) in conjunction
     with paragraph 1(1) of the Austrian Packaging Regu-
     lation), importers, packagers and distributors must take
     back free of charge sales and transport packaging after
     they have been used, in that the group of persons affected
     by this obligation is defined too narrowly and does not             Action brought on 13 September 2001 by the Com-
     include consumers, and/or does such a regulation conflict           mission of the European Communities against the Repub-
     with Article 1(1) of the Directive in so far as it is stated                                  lic of Austria
     there that the Directive’s aim is to avoid obstacles to
     trade, whereas an obligation for a producer to take back                                    (Case C-345/01)
     packaging materials is the greatest imaginable obstacle to
     trade?
                                                                                                 (2001/C 331/12)
5.   Does a collection and recovery system such as that                  An action against the Republic of Austria was brought
     operated in Austria by Altstoff Recycling Austria Aktien-           before the Court of Justice of the European Communities on
     gesellschaft pursuant to paragraph 11 of the Austrian               13 September 2001 by the Commission of the European
     Packaging Regulation [Or. 3] conflict with the principle            Communities represented by Götz zur Hausen, a legal adviser
     of proportionality if it is disproportionate to the needs of        in the legal Service of the Commission of the European
     effective environmetal protection?                                  Communities, with an address for service in Luxembourg at
                                                                         the office of Luis Escobar Guerrero, a member of the Legal
                                                                         Service of the European Commission, Wagner Centre C 254,
                                                                         Kirchberg, Luxembourg.
6.   Is it contrary to the principles laid down in Article 30 et
     seq., in particular Article 37 EC, for a Member State to set
     up, in implementation of Article 7 of the Directive, as has         The applicant claims that the Court should:
     happened in Austria pursuant to paragraph 11 of the
     Austrian Packaging Regulation, a collection and recovery            1.   Declare that, by failing to adopt the laws, regulations
     system occupying a monopoly position (in Austria,                        and administrative provisions necessary to comply with
     Altstoffrecycling Austria Aktiengesellschaft) so that com-               Council Directive 98/81/EC of 26 October 1998 (1)
     petition and the fundamental freedoms are dispro-                        amending Directive 90/219/EEC (2) on the contained use
     portionately and excessively restricted, this interference is            of genetically modified micro-organisms, or at least by
     out of proportion to any effective contribution towards                  failing to communicate them to the Commission, the
     increasing the level of environmental protection and                     Republic of Austria has failed to fulfil its obligations
     moreover this system, set up in parallel with the munici-                under Article 2(1) of that Directive.
     pal system, is not compatible with the objective of sorting
     waste at source, which, according to the preamble to the            2.   Order the Republic of Austria to pay the costs.