CELEX: C1997/331/16
Language: en
Date: 1997-11-01 00:00:00
Title: ORDER OF THE COURT (First Chamber) of 16 September 1997 in Case C-59/96 P: Casper Koelman v. Commission of the European Communities, supported by Buma, an association governed by Dutch law, and the French Republic (Appeal - Regulation No 17 - Rejection of a complaint - Statement of reasons)

1 . 11 . 97             EN                  Official Journal of the European Communities                                       C 331 /9
     of assessment, authorizes Member States to regard a               Hewlett, Administrator, for the Registrar, has given a
     credit note issued by the recipient of the goods or               judgment on 25 September 1997, in which it has ruled:
     services as a 'document serving as an invoice', where it
     includes the information prescribed for invoices by
     that directive, it is drawn up with the agreement of the          1 . The rule laid down in Council Regulation (EEC)
     taxable person who supplies the goods or services, and                   No 222H7 of 13 December 1976 on Community
     the latter is able to contest the amount of value added                  transit and Commission Regulation (EEC) No 223177
     tax mentioned.                                                           of 22 December 1976 on provisions for the
                                                                              implementation of the Community transit procedure
                                                                              and for certain simplifications of that procedure to the
2 . A taxable person who has not contested the mention,                       effect that, save as otherwise provided, proof of the
     in a credit note serving as an invoice, of an amount of                  Community status of goods may be provided only by
     value added tax greater than that owed by reason of                      means of transit documents T2 or T2 L is consistent
     taxable transactions may be regarded as the person                       with Articles 9 and 10 of the EC Treaty.
     who has mentioned that amount, and is consequently
     liable to pay the amount shown, within the meaning
     of Article 21 (1 ) (c) of the Sixth Directive.                    2 . Article 37 (2) of Regulation (EEC) No 222177 does
                                                                              not allow proof of the Community status of goods to
                                                                              be provided by means of the findings of the competent
(') OJ C 180, 22 . 6 . 1996 .                                                 authorities of a Member State made when inspections
(2) OJL 145, 13 . 6 . 1977, p . 1 .                                          are carried out under the Community transit
                                                                             procedure.
                                                                       f 1 ) OJ C269, 14 . 9 . 1996 . .
                                                                       (2 ) OJL 38 , 9.2 . 1977, p. 1 .
                                                                       ( 3 ) OJL 38 , 9.2 . 1977, p . 20 .
               JUDGMENT OF THE COURT
                         (Fourth Chamber)
                       of 25 September 1997
in Case C-237/96 (reference for a preliminary ruling from                                  ORDER OF THE COURT
the Cour d'Appel, Mons ): criminal proceedings against                                            (First Chamber)
                Eddy Amelynck and Others ( l )
                                                                                               of 16 September 1997
(Free movement of goods — Community transit — Proof
              of the Community status of goods)                        in Case C-59/96 P: Casper Koelman v. Commission of
                                                                       the European Communities, supported by Buma, an
                           ( 97/C 331 /15 )                            association governed by Dutch law, and the French
                                                                                                     Republic (J )
                                                                       (Appeal — Regulation No 17 — Rejection of a complaint
                 (Language of the case: French)                                              — Statement of reasons)
                                                                                                   (:97/C 331 / 16
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)                                       (Language of the case: Dutch)
In Case C-237/96 : reference to the Court under Article 177               (Provisional translation; the definitive translation will be
of the EC Treaty from the Cour d'Appel ( Court of                                  published in the European Court Reports)
Appeal ), Mons (Belgium ), for a preliminary ruling in the
criminal proceedings pending before that court against
Eddy Amelynck and Others and Transports Amelynck                       In Case C-59/96 P, Casper Koelman (represented by:
SPRL, party liable at civil law — on the interpretation                R. V. H. Jonker) — appeal against the judgment of the
and validity of Council Regulation ( EEC ) No 222/77                   Court of First Instance of the European Communities
of 13 December 1976 on Community transit (2 )                          ( Fourth Chamber, Extended Composition ) in Case T-575/
and Commission Regulation ( EEC) No 233/77 of                          93 Koelman v. Commission [ 1996] ECR II- 1 , seeking to
22 December 1976 on provisions for the implementation                  have that judgment set aside, the other party to the
of the Community transit procedure and for certain                     proceedings being the Commission of the European
simplifications of that procedure (3 ) — the Court ( Fourth            Communities (Agent: B. J. Drijber ), supported by Buma,
Chamber), composed of: J. L. Murray, President of the                  an association governed by Dutch law, established at
Chamber, C. N. Kakouris ( Rapporteur) and P. J. G.                     Amstelveen (Netherlands), represented by C. van Rij and
Kapteyn, Judges; C. O. Lenz, Advocate General; L.                      E. A. P. Engels, of the Amsterdam Bar, with an address for
 ---pagebreak--- C 331 / 10              EN                    Official Journal of the European Communities                                        1 . 11 . 97
service in Luxembourg at the Chambers of G. Harles, 8­                   3 . Where a collective agreement provides that pay for
10 Rue Mathias Hardt, and the French Republic (Agents:                       the same work or for work of equal value is
C. de Salins and R Martinet) — the Court ( First Chamber)                    to vary according to the employee's professional
composed of: L. Sevon, President of the Chamber, D. A. O.                    qualifications, are the groups to be compared for the
Edward and M. Wathelet ( Rapporteur), Judges; G.                             purpose of determining whether a measure gives rise
Tesauro, Advocate General; R. Grass, Registrar, has made                     to discrimination to be defined by reference to
an order on 16 September 1997, the operative part of
which is at follows :
                                                                             ( a ) the persons actually employed in the undertaking,
1 . The appeal is dismissed;
                                                                             ( b ) the employees covered by the collective agreement,
                                                                                   or
2 . The appellant is ordered to pay the costs.
                                                                             (c ) the persons qualified to pursue that occupation ?
(') OJ C 133,4 . 5 . 1996 .
                                                                         4 . In such a case ( Questions 2 and 3 ) is the relevant
                                                                             proportion of men to women that in the
                                                                             disadvantaged group only, or that in both groups ?
Reference        for     a      preliminary    ruling     by     the
Oberlandesgericht Wien by order of that court of 5 May                   5 . Where the activities which both groups have actually
1997 in the case of Angestelltenbetriebsrat der Wiener                       been called on to perform represent only a fraction of
 Gebietskrankenkasse against Wiener Gebietskrankenkasse                      the duties covered by the relevant professional
                           ( Case C-309/97                                   qualification, is the relevant group
                             ( 97/C 331 /17)
                                                                             ( a ) all persons whose qualifications cover such duties
                                                                                   ( all medical specialists and all psychologists ) in the
Reference has been made to the Court of Justice                                    relevant context ( the establishment, the collective
of the European Communities by order of the                                        agreement — see Question 3 ),
Oberlandesgericht ( Higher Regional Court), Vienna, of
5 May 1997, received at the Court Registry on
4 September 1997, for a preliminary ruling in the case of                    ( b ) all those specifically qualified for this type of work
Angestelltenbetriebsrat der Wiener Gebietskrankenkasse v.                          ( doctors specialized in psychiatry . . .), or
Wiener Gebietskrankenkasse on the following questions:
                                                                             (c ) only those who in practice perform these duties ?
1 . Do the terms 'equal work' or 'the same job' apply for
     the purposes of Article 119 of the EC Treaty or
     Directive 75/117/EEC ( J ) where the same duties are                6 . Where employees are assigned to the same duties, is a
     performed over a considerable length of time                            difference in their professional training to be regarded
     ( several salary periods ) by employees with different                  as a factor capable of justifying discriminatory rates of
     professional qualifications ?                                           pay ? Are more extensive professional qualifications to
                                                                             be regarded, independently of the duties actually
                                                                             performed, as an objective factor justifying
2. Is it material, in determining whether discrimination                     discriminatory rates of pay ?
     for the purposes of Article 119 of the EC Treaty or
     Directive 75/119/EEC exists, that:
                                                                             ( a ) Is the decisive factor therefore whether the higher­
     ( a ) pay is determined exclusively by the parties to the                     paid group of employees in the undertaking
           employment contract, who may decide whether                             concerned can also be considered for other duties,
                                                                                   or
           to have the terms of collective agreements
           incorporated therein,
                                                                             ( b ) is actual proof of performance of other duties
     ( b ) general    rules      (collective agreements )    fix   a               essential ?
           mandatory minimum level of pay for every
           employee in a particular field or
                                                                             Is account to be taken of the fact that the relevant
     (c ) pay is governed unconditionally and definitively by                rules of the collective agreement provide for protection
           collective agreements ?                                           against arbitrary dismissal ?