CELEX: C2001/028/43
Language: en
Date: 2001-01-27 00:00:00
Title: Case C-439/00: Action brought on 28 November 2000 by the Commission of the European Communities against the French Republic

C 28/22                EN                     Official Journal of the European Communities                                     27.1.2001
Reference for a preliminary ruling by the Hoge Raad der                  3.    For the purposes of the application of criminal law, may
Nederlanden by judgment of that court of 21 November                           ‘leaves’ or ‘ceases to be covered’ also be taken to refer
   2000 in the criminal proceedings against G. Cuomo                           to the mere placing and transport of goods under a
                                                                               Community customs procedure where a third country, as
                                                                               referred to in the directive, is entered as the destination
                                                                               of that transport operation in the accompanying docu-
                         (Case C-434/00)                                       ments but the intention of placing the goods on the
                                                                               market in another Member State was present at the start
                                                                               of the transport operation?
                          (2001/C 28/42)
                                                                         (1) Council Directive 92/12/EEC of 25 February 1992 on the general
                                                                             arrangements for products subject to excise duty and on the
Reference has been made to the Court of Justice of the                       holding, movement and monitoring of such products (OJ 1992
European Communities by judgment of the Hoge Raad                            L 76, p. 1).
der Nederlanden (Supreme Court of the Netherlands) of                    (2) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
21 November 2000, received at the Court Registry on                          harmonization of the laws of the Member States relating to
27 November 2000, for a preliminary ruling in the criminal                   turnover taxes — Common system of value added tax: uniform
proceedings against G. Cuomo on the following questions:                     basis of assessment (OJ 1977 L 145, p. 1).
1.   What is to be understood by ‘leaves’ or ‘ceases to be
     covered by’ (onttrekken) the external transit procedure
     within the meaning of the third subparagraph of Article
     5(1) of the Directive on products subject to excise duty (1)
     and of Article 7(3) of the Sixth Directive (2), where such
     leaving or cessation is irregular — that is to say, it occurs
     otherwise than by declaring the goods for release for free
     circulation:
                                                                         Action brought on 28 November 2000 by the Com-
                                                                         mission of the European Communities against the French
                                                                                                       Republic
     (a)   is it the first action in relation to the goods
           which contravenes a provision connected with that
           procedure, and is the presence of an intention to                                       (Case C-439/00)
           place the goods — partly by that action — on the
           Community market in breach of that provision
           relevant; or                                                                             (2001/C 28/43)
     (b) does it occur (only) when the goods — in this case              An action against the French Republic was brought before the
           after breaking the seal — are unloaded from the               Court of Justice on 28 November 2000 by the Commission of
           vehicle without satisfying the requirement to pro-            the European Communities, represented by Michel Nolin, of
           duce the goods together with the relevant document            its Legal Service, acting as Agent, with an address for service
           at the office of destination in accordance with Article       in Luxembourg at the office of Carlos Gómez de la Cruz,
           22(1) of Regulation (EEC) No 2726/90 (OJ 1990                 Wagner Centre, Kirchberg.
           L 262, p. 1), and is the presence of an intention to
           place the goods — partly by that action — on the
           Community market in breach of Community law                   The Commission of the European Communities claims that
           relevant; or                                                  the Court should:
     (c)   must ‘leaves’ or ‘ceases to be covered by’ be taken to        —     declare that, by failing to adopt all the laws, regulations
           refer to all the actions (taken together) resulting in              and administrative measures necessary in order to comply
           the goods being placed unlawfully on the Com-                       with Directive 98/4/EC of the European Parliament and
           munity market?                                                      of the Council of 16 February 1998 amending Directive
                                                                               93/38/EEC coordinating the procurement procedures of
                                                                               entities operating in the water, energy, transport and
                                                                               telecommunications sectors (1), or at all events by failing
2.   If the answer to the first question is as indicated in (c),               to communicate the same to the Commission, the French
     where does the ‘leaving’ or ‘cessation of coverage’ occur:                Republic has failed to comply with its obligations under
     where the first unlawful action is performed or where a                   that directive;
     subsequent action is performed, in particular where the
     goods — in this case after breaking the seal — are
     unloaded from the vehicle?                                          —     order the French Republic to pay the costs.
 ---pagebreak--- 27.1.2001               EN                  Official Journal of the European Communities                                       C 28/23
Pleas in law and main arguments                                        Reference for a preliminary ruling by the Tribunal
                                                                       Superior de Justicia de Castilla-La Mancha, Sala de lo
                                                                       Social, by order of that court of 27 October 2000 in the
The pleas in law and main arguments are similar to those
                                                                       case of Ángel Rodrı́guez Caballero against Fondo de
advanced in Case C-407/00 (2); the transposition period expired
                                                                                         Garantı́a Salarial (FOGASA)
on 16 February 1999.
                                                                                                (Case C-442/00)
(1) OJ L 101 of 1.4.1998, p. 1.
(2) See p. 13 of this Official Journal.
                                                                                                 (2001/C 28/45)
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Tribunal Superior de
                                                                       Justicia, Sala de lo Social (High Court of Justice, Social
                                                                       Chamber), Castilla-La Mancha, Spain, of 27 October 2000,
                                                                       received at the Court Registry on 30 November 2000, for a
Action brought on 29 November 2000 by the Com-                         preliminary ruling in the case of Ángel Rodrı́guez Caballero
mission of the European Communities against the United                 against Fondo de Garantı́a Salarial (Wages Guarantee Fund,
      Kingdom of Great Britain and Northern Ireland                    FOGASA) on the following questions:
                                                                       (a)   Should a concept of the kind at issue in the present
                           (Case C-441/00)                                   proceedings, namely remuneration which is payable by
                                                                             the employer to the employee as a result of the dismissal
                            (2001/C 28/44)                                   being unfair, be regarded as falling within those
                                                                             ‘employees’ claims arising from contracts of employment
                                                                             or employment relationships’ referred to in Article 1(1)
An action against the United Kingdom of Great Britain and                    of Council Directive 80/987/EEC (1) of 20 October 1980
Northern Ireland was brought before the Court of Justice of                  on the approximation of the laws of the Member States
the European Communities on 29 November 2000 by the                          relating to the protection of employees in the event of
Commission of the European Communities, represented by                       the insolvency of their employer?
Marie Wolfcarius, Legal Adviser, acting as agent, with an
address for service in Luxembourg at the office of Carlos              (b) In the affirmative, is there an obligation under Article
Gómez de la Cruz, Centre Wagner.                                            1(1) of Directive 80/987 to determine employees’ claims
                                                                             by way of either a judicial decision or an administrative
The Applicant claims that the Court should:                                  decision, and should such claims include all those
                                                                             employee claims upheld in the course of any other
—     declare that by failing to adopt the laws, regulations                 procedure recognised at law and judicially reviewable,
      or administrative provisions necessary to comply with                  such as conciliation, a compulsory procedure conducted
      Council Directive 96/48/EC (1) of 23 July 1996 on the                  before a court, which must encourage the parties to
      interoperability of the trans-European high-speed rail                 negotiate before commencing any legal proceedings and
      system, the United Kingdom has failed to fulfil its                    approve the terms of any agreement, and may prevent an
      obligations under that Directive.                                      agreement being concluded if it considers that the terms
                                                                             of the agreement would seriously prejudice one of the
                                                                             parties or amount to a circumvention of the law or an
—     order the United Kingdom to pay the costs.
                                                                             abuse of process?
                                                                       (c)   In the event that post-dismissal remuneration agreed
Pleas in law and main arguments                                              upon in a court-supervised conciliation and approved by
                                                                             the court does fall within the scope of ‘employees’ claims’,
Article 249 EC (ex Article 189 of the EC Treaty), under which                may the national court responsible for giving judgment
a directive shall be binding as to the result to be achieved,                in the proceedings refrain from applying a provision of
upon each Member State, carries by implication an obligation                 national law which excludes the employee’s claim for
on the Member States to observe the period for compliance                    such remuneration from the scope of matters for which
laid down in the directive. That period expired on 8 April 1999              the national state guarantee institution, the Fondo de
without the United Kingdom having enacted the provisions                     Garantia Salarial, is responsible and apply Article 1(1) of
necessary to comply with the directive referred to in the                    the directive directly on the ground that it considers the
conclusions of the Commission.                                               provision to be clear, precise and unconditional?
(1) OJ L 235, 17.9.1996, p. 6.                                         (1) OJ L 283, 28.10.1980, p. 23.