CELEX: C2002/031/10
Language: en
Date: 2002-02-02 00:00:00
Title: Case C-443/01: Reference for a preliminary ruling by the Vestre Landsret by order of 13 September 2001 in the case of Poul Nørgaard v Skatteministeriet

2.2.2002              EN                    Official Journal of the European Communities                                          C 31/5
Action brought on 15 November 2001 by the Com-                         where possible — an internal working conditions service must
mission of the European Communities against the                        be established is entirely immaterial, inasmuch as that rule
                 Kingdom of the Netherlands                            already follows from the combined provisions of Article 7(1)
                                                                       and 7(3) and there was thus no need to reiterate it in
                                                                       Article 7(6).
                        (Case C-441/01)
                                                                       (1) OJ L 183, 29.6.1989, p. 1.
                         (2002/C 31/09)
An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
15 November 2001 by the Commission of the European                     Reference for a preliminary ruling by the Vestre Landsret
Communities, represented by H. van Vliet and H. Kreppel,               by order of 13 September 2001 in the case of Poul
acting as Agents.                                                                        Nørgaard v Skatteministeriet
                                                                                                (Case C-443/01)
The applicant claims that the Court should:
                                                                                                 (2002/C 31/10)
—     Declare that, by authorising employers freely to choose
      between internal and external health and safety services,
      the Kingdom of the Netherlands has failed to fulfil its
      obligations under the EC Treaty and under Article 7(3) of        Reference has been made to the Court of Justice of the
      Directive 89/391/EEC (1) on the introduction of measures         European Communities by order of 13 September 2001 by
      to encourage improvements in the safety and health of            the Vestre Landsret (Western Regional Court), which was
      workers at work;                                                 received at the Court Registry on 19 November 2001, for a
                                                                       preliminary ruling in the case of Poul Nørgaard v Skatteminis-
                                                                       teriet (Ministry of Fiscal Affairs) on the following questions:
—     Order the Kingdom of the Netherlands to pay the costs
      of the proceedings.
                                                                       Question 1
                                                                       Must Article 13.B(b)(1) of Sixth VAT Directive 77/388/EEC (1)
                                                                       be construed as meaning that a short-term letting such as
                                                                       described in the order is covered by the phrase ‘provision of
Pleas in law and main arguments                                        accommodation ... in the hotel sector or in sectors with a
                                                                       similar function’?
                                                                       Question 2
The Netherlands authorities err in challenging the Com-
mission’s interpretation of Article 7(3) to the effect that the        If lettings of immovable property for holiday purposes for
Directive does not confer on employers, in the organisation of         fixed periods of less than one month and divisible by one week
protective and preventive measures, the choice between using           may be covered by the phrase ‘provision of accommodation ...
competent members of their own staff and enlisting competent           in the hotel sector or in sectors with a similar function’, can
external services, but rather establishes a hierarchy between          Member States then define the term ‘sectors with a similar
those two solutions with the objective criterion of whether or         function’ on the basis of a comprehensive assessment of
not there are staff in the undertaking having the necessary            objective criteria, such as, for instance, whether the immovable
competence to carry out activities in the area of protection           property is separately registered, whether the immovable
against and prevention of occupational risks. It is clear from         property is connected to facilities that are shared by other
the structure and wording of Article 7 of the Directive, in            properties, and whether services such as the provision of bed
particular Article 7(1), that the Community legislature has            linen, breakfast, cleaning and suchlike are provided?
provided that the employer must, in principle, designate
persons within the undertaking to perform the tasks in
question. It is evident from the connection between
                                                                       (1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
Article 7(2), second sentence, and Article 7(3) that, even if an           harmonisation of the laws of the Member States relating to
employer might prefer to engage an outside company and                     turnover taxes — Common system of value added tax: uniform
require his employees to work exclusively for the purposes of              basis of assessment.
the undertaking, he may not do so but must rather designate
employees and allow those employees the time to perform
their tasks. The fact that Article 7(6) does not provide that —