CELEX: C1999/246/38
Language: en
Date: 1999-08-28 00:00:00
Title: Case C-242/99: Reference for a preliminary ruling from the Sozialgericht Augsburg by order of that court of 26 April 1999 in the case of Johann Vogler v Landwirtschaftliche Alterskasse Schwaben

C 246/18              EN                    Official Journal of the European Communities                                    28.8.1999
Reference for a preliminary ruling by the Sala de lo Social,           1. Is Article 13(1) in conjunction with Article 14a(2) of
Tribunal Superior de Justicia de Galicia, by order of 14                  Regulation (EEC) No 1408/71 on the application of social
June 1999 in the case of Confederación Intersindical                     security schemes to employed persons, to self-employed
  Galega (C.I.G.) and Servicio Galego de Saude (SERGAS)                   persons 1and to members of their families moving within
                                                                          the Community (1), in the version of Council Regulation
                                                                          (EC) No 118/97 of 2 December 1996 (2), as last amended
                        (Case C-241/99)                                   by Council Regulation (EC) No 307/99 of 8 February
                                                                          1999 (3), invalid because to provide freedom of establish-
                        (1999/C 246/37)                                   ment in accordance with Article 52 of the EC Treaty it is
                                                                          not necessary within the meaning of Articles 51 and 235
                                                                          of the EC Treaty, each in conjunction with the second and
Reference has been made to the Court of Justice of the                    third paragraphs of Article 3b of the EC Treaty, to provide
European Communities by order of the Sala de lo Social,                   that a person who has sickness, accident and pension
Tribunal Superior de Justicia de Galicia (Chamber for Social              insurance with the Sozialversicherung der gewerblichen
Affairs of the High Court of Justice of Galicia) of 14 June               Wirtschaft in Austria, as the self-employed operator of a
1999, which was received at the Court Registry on 25 June                 hotel, and in addition is covered in principle, as the
1999, for a preliminary ruling in the case of Confederación              self-employed operator of an agricultural undertaking in
Intersindical Galega (C.I.G.) and Servicio Galego de Saude                Germany, by the German old-age insurance scheme for
(SERGAS), on the following questions:                                     farmers, because of being resident in Austria is subject
                                                                          exclusively to Austrian legislation not only with respect to
1. In the light of Article 1(3) of Council Directive                      the risk of ’sickness’ but also with respect to the risks
    93/104/EC (1), must it be concluded that the work of the              of ’old age’ and ’invalidity’ or ’accidents at work and
    professional persons to which this dispute relates falls              occupational diseases’?
    within the scope of that directive?
2. In the light of Article 118 of the Treaty and the reference
                                                                       2. If the answer to Question 1 is No:
    to Directive 89/391/EC (2) in the preamble to, and Article
    1(4) of, Directive 93/104/EC, is it appropriate to conclude
    that the work of the professional persons at issue in
    this dispute falls within the scope of the exceptions or              Is Article 13(2)(b) of Regulation No 1408/71 to be
    exclusions referred to in Article 2 of the last-mentioned             interpreted as meaning that a person who pursues several
    directive and in Article 17 of Directive 93/104/EC?                   self-employed activities in the territory of several Member
                                                                          States is subject to the legislations of those States (in this
3. In view of the fact that Article 4.2 of Decree No 172/95 of            case, Austria and Germany), even if he rives in the territory
    the Xunta de Galicia of 18 May 1995 provides that                     of one Member State only (in this case, Austria)?
    ‘Assistance shall be provided on the basis of personal
    attendance’, must the whole period of a shift be regarded
    as ordinary working time? May that period be regarded as           3. Or is Article 14a(2) of Regulation No 1408/71 applicable
    constituting overtime?                                                only to persons who normally pursue a specific self-
                                                                          employed activity, but not two different self-employed
                                                                          activities, in the territory of two or more Member States?
(1) OJ L 307 of 13.12.1993, p. 18.
(2) OJ L 183 of 29.6.1989, p. 1.
                                                                          Or is Article 14a(2) of Regulation No 1408/71 applicable
                                                                          also to persons who normally pursue two or more
                                                                          self-employed activities not connected with each other in
                                                                          the territory of two or more Member States?
                                                                       4. What is the relationship between Article 14a(3) of Regu-
                                                                          lation No 1408/71 and Article 14a(2) of Regulation No
                                                                          1408/71? Is Article 14a(3) to be interpreted as meaning
Reference for a preliminary ruling from the Sozialgericht                 that the social insurance obligation of the operator of
Augsburg by order of that court of 26 April 1999 in the                   an agricultural undertaking is always governed by the
case of Johann Vogler v Landwirtschaftliche Alterskasse                   legislation of the State of the registered office or place of
                           Schwaben                                       business, even if one or more other self-employed activities
                                                                          are pursued in another Member State?
                        (Case C-242/99)
                        (1999/C 246/38)                                5. Or does Article 14c of Regulation No 1408/71 in conjunc-
                                                                          tion with Annex VII for the implementation of Article
                                                                          14c(b), point 3, contain a legislative lacuna for the
Reference has been made to the Court of Justice of the                    agricultural accident insurance scheme and the old-age
European Communities by an order of the Sozialgericht (Social             insurance scheme for farmers, if the latter pursue self-
Court) Augsburg Germany, of 26 Apri1 1999, which was                      employed agricultural activity in Germany and are not
received at the Court Registry on 25 June 1999, for a                     gainfully employed in another Member State but pursue a
preliminary ruling in the case of Johann Vogler v Landwirt-               self-employed activity there (in this case, a hotelier in
schaftliche Alterskasse Schwaben on the following questions:              Austria)?
 ---pagebreak--- 28.8.1999                EN                     Official Journal of the European Communities                                       C 246/19
     If so: May Article 14c(b) of Regulation No 1408/71 in                 Action brought on 1 July 1999 by the Commission of the
     conjunction with Annex VII (implementation of Article                 European Communities against the Kingdom of Denmark
     14c(b)) be applied by analogy to the situation in this case
     of the pursuit of two different self-employed activities
     (hotelier in Austria and farmer in Germany)?                                                  (Case C-246/99)
                                                                                                   (1999/C 246/40)
( 1) OJ, English Special Edition, 1971, p. 416.
(2) OJ L 28 of 30.1.1997, p. 1.
                                                                           An action against the Kingdom of Denmark was brought
(3) OJ L 38 of 12.2.1999, p. 1.                                            before the Court of Justice of the European Communities on 1
                                                                           July 1999 by the Commission of the European Communities,
                                                                           represented by Hans Christian Støvlbæk, of its Legal Service,
                                                                           acting as Agent, with an address for service in Luxembourg at
                                                                           the office of Carlos Gómez de la Cruz, Wagner Centre,
                                                                           Kirchberg.
                                                                           The applicant claims that the Court should:
                                                                           1. Declare that, by maintaining Paragraphs 2(1) and 1(2) of
Reference for a preliminary ruling by the Landesgericht                        Decree No 124 of 27 February 1989 on packaging for
Korneuburg (Austria) by order of 18 June 1999 in the                           beer and soft drinks, as most recently amended by Decree
case of FILA Sport S.p.A. v Beijing Metals & Minerals                          No 300 of 30 April 1997, providing that drinks covered
                      Import & Export Corp.                                    by the Decree may be marketed only in returnable
                                                                               packaging, and by maintaining Paragraph 3 of that Decree,
                                                                               which provides that the packaging of imported drinks may
                                                                               not be made of metal, the Kingdom of Denmark, further
                           (Case C-243/99)                                     to Article 226 EC (ex Article 169), has failed to fulfil
                                                                               its obligations under European Parliament and Council
                                                                               Directive 94/62/EC (1) of 20 December 1994 on packaging
                           (1999/C 246/39)                                     and packaging waste, particularly Article 18, in conjunc-
                                                                               tion with Articles 5, 7 and 9 thereof, and Articles 28 and
                                                                               30 EC (ex Articles 30 and 36);
Reference has been made to the Court of Justice of the
European Communities by order of 18 June 1999 from
the Landesgericht Korneuburg (Regional Court, Korneuburg)                  2. Order the Kingdom of Denmark to pay the costs of these
(Austria), which was received at the Court Registry on 28 June                 proceedings.
1999, for a preliminary ruling in the case of FILA Sport S.p.A.
v Beijing Metals & Minerals Import & Export Corp. on the
following question:
                                                                           Pleas in law and main arguments
On a proper construction of Article 1 thereof, is Council
Regulation (EC) No 3295/94 of 22 December 1994 laying                      — Directive 92/64/EC provides that Member States, on the
down measures to prohibit the release for free circulation,                    one hand, cannot impede the placing on the market of
                                                                               their territory of packaging which satisfies the rules of the
export, re-export or entry for a suspensive procedure of
                                                                               Directive (Article 18) and, on the other, may allow
counterfeit and pirated goods (1) also applicable to situations
                                                                               packaging to be placed on the market only if it complies
in which goods of the type specified therein are, in the course
of transit between two States not belonging to the European                    with the essential requirements of the Directive (Article
Community, temporarily detained by customs authorities in a                    9(1)). The Directive thus establishes full harmonisation of
                                                                               Member States’ national rules on packaging and packaging
Member State on the basis of that regulation, at the request of
                                                                               waste.
a holder of rights who claims that his rights have been
infringed and whose undertaking has its registered office in a
Member State of the European Community?
                                                                               The Directive does not contain provisions authorising
                                                                               Member States to lay down more stringent rules. It follows
                                                                               that Member States cannot maintain in force national
                                                                               requirements which diverge from those laid down in the
(1) OJ 1994 L 341 of 30.12.1994, p. 8.                                         Directive. Since the Directive establishes full harmonisation
                                                                               of the rules on packaging, inter alia with a view to
                                                                               preventing competition from being distorted, a Member
                                                                               State cannot apply rules on the packaging to be used for
                                                                               domestic drinks which differ from those which may be
                                                                               applied to packaging for imported drinks.