CELEX: C1998/312/13
Language: en
Date: 1998-10-10 00:00:00
Title: Reference for a preliminary ruling by the Landesarbeitsgericht Hamburg by order of that court of 24 July 1998 in the case of Bärbel Kachelmann against Bankhaus Hermann Lampe KG (Case C-322/98)

10.10.98             EN                  Official Journal of the European Communities                                    C 312/7
lijk Middenstandsverbond (NCMV), Koninklijke Vereni-                    ETUC have sufficient collective representativity, they
ging MKB-Nederland, FeÂdeÂration des Artisans, Confedera-               Ð to the exclusion of all other associations Ð will
zione Generale Italiana del Artigianato (Confartigianato),              always have the right to negotiate the framework
Wirtschaftskammer Österreich, Bundesvereinigung der                     agreements implemented by Community legislative
Fachverbände des Deutschen Handwerks eV (BFH), and                      instrument pursuant to Article 4(2), first paragraph, of
the Council of the European Union, supported by the                     the Agreement on social policy. Such a system is also
Commission of the European Communities, was brought                     in breach of the freedom of association of national
before the Court of Justice of the European Communities                 associations and their members. Thus, if the
on 14 August 1998 by the Union EuropeÂenne de l'Artisa-                 associations which are members of UEAPME Ð or
nat et des Petites et Moyennes Entreprises (UEAPME),                    rather the SMUs which belong to members of
represented by Francis Herbert and Daniel Tomasevic, of                 UEAPME Ð wish one day to be involved in the
the Brussels Bar, with an address for service in                        negotiation of European framework agreements, they
Luxembourg at the Chambers of Katia Manhaeve, 56Ð58                     will be compelled to join UNICE so that the latter can
Rue Charles Martel.                                                     represent them,
The appellant claims that the Court should:                         Ð infringement of the procedural rules relating to the
                                                                        rights of the defence and the equality of arms in
                                                                        judicial proceedings: in the absence of any relevant
Ð set aside the judgment of the Court of First Instance of              evidence, the Court of First Instance cannot call in
    the European Communities of 17 June 1998 in Case                    question the fact that the applicant represents
    T-135/96 between the same parties,                                  undertakings with employees, while denying the
                                                                        applicant an opportunity to address that question
                                                                        (sufficient time being allowed for it to substantiate its
Ð annul Council Directive 96/34/EC of 3 June 1996 on
                                                                        reply). The approach of the Court of First Instance is
    the framework agreement on parental leave concluded
                                                                        all the more improper in view of the fact that it clearly
    by UNICE, CEEP and ETUC (1) in its entirety, or, in
                                                                        suggested in its questions at the end of the written
    the alternative, with respect solely to its application to
                                                                        procedure that the point at issue was the number of
    SMUs,
                                                                        undertakings represented, not the number of persons
                                                                        employed by those undertakings,
Ð order the Commission to pay all costs, including those
    incurred in the proceedings before the Court of First
    Instance.                                                       Ð breach of the obligation to state reasons.
                                                                    (1) OJ L 145, 19.6.1996, p. 4.
Pleas in law and main arguments adduced in support:
Ð Infringement of Article 2(2) of the Agreement on
    social policy concluded between the Member States of
    the European Community with the exception of the
    United Kingdom of Great Britain and Northern
                                                                    Reference for a preliminary ruling by the Landesarbeits-
    Ireland, annexed to Protocol 14 on social policy,
                                                                    gericht Hamburg by order of that court of 24 July 1998
    annexed to the Treaty establishing the European
                                                                    in the case of Bärbel Kachelmann against Bankhaus
    Community: the Court of First Instance erroneously
                                                                                         Hermann Lampe KG
    assessed the scope of Article 2(2) which, with a view
    to ensuring compliance with the clear and                                              (Case C-322/98)
    unconditional prohibition laid down therein, calls for
                                                                                            (98/C 312/13)
    the participation of an association which is genuinely
    representative of SMUs and authorised by them to
    present their case. Respect for their prerogatives can
    only be ensured by direct recognition of the                    Reference has been made to the Court of Justice of the
    association representing SMUs as having a right of              European Communities by order of the Sixth Chamber of
    action for annulment. The Court of Justice cannot, by           the Landesarbeitsgericht Hamburg (Higher Labour Court,
    means of a preliminary ruling Ð in so far as a                  Hamburg) of 24 July 1998, received at the Court Registry
    reference for such a ruling implies that a national             on 20 August 1998, for a preliminary ruling in the case of
    court is confronted with a conflict between legal rules         Bärbel Kachelmann against Bankhaus Hermann Lampe
    after the Directive's transposition Ð express judicial          KG on the following question:
    condemnation of the unlawful situation until after it
    has been created,
                                                                    Is Article 5(1) of Directive 76/207/EEC (1) to be interpreted
                                                                    as meaning that, when applying paragraph 1(3) of the
Ð infringement of Article 4 of the Agreement on social              Kündigungsschutzgesetz (Law on Employment Protection)
    policy: the Court of First Instance misinterpreted the          Ð in this case in the version in force until 30 September
    meaning of management and labour'. It reasons that,            1996 Ð part-time female employees are to be regarded as
    provided it is established that UNICE, CEEP and                 comparable with male/female full-time employees in the
 ---pagebreak--- C 312/8               EN                  Official Journal of the European Communities                                10.10.98
context of the selection of employees for dismissal on                     Removal from the register of Case C-359/96 (1)
social criteria if substantially more women than men are                                     (98/C 312/15)
employed part-time in a sector?
(1) OJ L 39, 14.2.1976, p. 40.                                       By order of 28 May 1998 the President of the Court of
                                                                     Justice of the European Communities has ordered the
                                                                     removal from the register of Case C-359/96 (reference for
                                                                     a preliminary ruling from the Pretura Circondariale di
                                                                     Pavia): Criminal proceedings against Luigi Bazzan,
                                                                     Agostino Traverso and Adriano Calvini.
Action brought on 1 September 1998 by the Commission
of the European Communities against the French Republic              (1) OJ C 9, 11.1.1997.
                       (Case C-326/98)
                         (98/C 312/14)
An action against the French Republic was brought before
the Court of Justice of the European Communities on                        Removal from the register of Case C-335/96 (1)
1 September 1998 by the Commission of the European
Communities, represented by Richard Wainwright,                                              (98/C 312/16)
Principal Legal Adviser, and Olivier Court-Castera, a
national civil servant on secondment to its Legal Service,
acting as Agents, with an address for service in                     By order of 9 June 1998 the President of the Court of
Luxembourg at the office of Carlos Gómez de la Cruz,                 Justice of the European Communities has ordered the
Wagner Centre, Kirchberg.                                            removal from the register of Case C-335/96: Commission
                                                                     of the European Communities v. Hellenic Republic.
The applicant claims that the Court should:
                                                                     (1) OJ C 388, 21.12.1996.
Ð declare that, by requiring the words cotisation seÂcuriteÂ
     sociale' (social security levy') to appear on the
     labelling of alcoholic beverages from other Member
     States, the French Republic has failed to fulfil its
     obligations under Article 30 of the Treaty,
                                                                           Removal from the register of Case C-318/97 (1)
Ð order the French Republic to pay the costs.                                                (98/C 312/17)
Pleas in law and main arguments adduced in support:
                                                                     By order of 15 June 1998 the President of the Court of
Under French law, a contribution to the national sickness            Justice of the European Communities (Fifth Chamber) has
insurance fund is levied on alcoholic beverages having an            ordered the removal from the register of Case C-318/97:
alcohol content in excess of 25 % by volume. The                     Commission of the European Communities v. Kingdom of
contribution is paid by wholesalers and by producers                 Spain.
selling such beverages direct to retailers or consumers, and
the words cotisation seÂcuriteÂ sociale' must appear in the         (1) OJ C 318, 18.10.1997.
form of a circle on the labelling of those beverages.
As regards products coming from other Member States,
the labelling obligation referred to above, failure to
comply with which may lead to a criminal prosecution,
constitutes a restriction on the free movement of goods                    Removal from the register of Case C-398/97 (1)
and thus falls, as a measure having equivalent effect,
within the scope of Article 30 of the Treaty.                                                (98/C 312/18)
A labelling obligation intended to inform consumers by
                                                                     By order of 17 June 1998 the President of the Court of
pointing out the risks of alcohol abuse and the total cost
                                                                     Justice of the European Communities has ordered the
borne by the social security system may be regarded as
                                                                     removal from the register of Case C-398/97: Commission
legitimate, provided however that the measure in question
                                                                     of the European Communities v. Italian Republic.
is appropriate to the achievement of that objective. In the
Commission's view, that criterion is not fulfilled by the
words cotisation seÂcuriteÂ sociale'.                               (1) OJ C 26, 24.1.1998.