CELEX: C1996/370/18
Language: en
Date: 1996-12-07 00:00:00
Title: Reference for a preliminary ruling from the Tribunal Superior de Justicia de Madrid, Sala de lo Contencioso-Administrativo, Sección Primera, by order of that court of 3 July 1996 in the case of Soldred SA v. Administración General del Estado (Case C-347/96)

7 . 12 . 96              EN |                 Official Journal of the European Communities                                  No C 370/ 7
Pleas in law and main arguments adduced in support:                      2 . Does at least the principle, to be regarded as part of
                                                                               Community law, that national law is to be interpreted
                                                                               in a Community manner consistent with EC law,
According to the third paragraph of Article 189 of the EC                      require national provisions on equal treatment with
Treaty, a directive is to be binding, as to the result to be                   respect to benefits from occupational pension schemes
achieved, upon each Member State to which it is addressed.                     to be interpreted and applied in harmony with the
It follows that each Member State is obliged to realize the                    requirements and limitations ( prohibition of retroactive
objective of the directive prior to the expiry of the time­                    effect) of Community law ?
limit prescribed therein, that is to say, to transpose it into
domestic law in such a way that its practical effect is
achieved in full . The Federal Republic of Germany has
failed to discharge that obligation to transpose the Directive
in full within the time-limit laid down in Article 34 ( 1 )
thereof ( 14 June 1994 ).
                                                                         Reference for a preliminary ruling by the Rechtbank van
                                                                         Eerste Aanleg, Brussels, by judgment of that court of
(M OJNoL 199 , 9 . 8 . 1993 , p . 1 .                                    11 October 1996 in the case of Belgisch Interventie- en
                                                                                       Restitutiebureau against Prolacto NV
                                                                                                    ( Case C-346/96 )
                                                                                                      ( 96/C 370/ 17 )
Reference for a preliminary ruling from the
Landesarbeitsgericht Niedersachsen by order of that court
                                                                         Reference has been made to the Court of Justice of the
of 10 February 1995 in the case of Landeshauptstadt
                      Hannover v. Almut Sattler                          European Communities by judgment of the Rechtbank van
                                                                         Eerste Aanleg ( Court of First Instance ), Brussels, of
                           ( Case C-345 /96                              11 October 1996 , received at the Court Registry on
                             ( 96/C 370/ 16 )                            21 October 1996, for a preliminary ruling in the case of
                                                                         Belgisch Interventie- en Restitutiebureau against Prolacto
                                                                         NV on the following question:
Reference has been made to the Court of Justice of the
European Communities . by an order of the Third Chamber
of the Landesarbeitsgericht Niedersachsen (Higher Labour                 In the context of a tender for the supply of skimmed milk
Court of Lower Saxony) of 10 February 1995 , which was                   power as food aid on the basis of Commission Regulations
                                                                         ( EEC ) Nos 345/87 ( ] ) and 1358/87 ( 2 ) of 3 February 1987
received at the Court Registry on 18 October 1996, for a
                                                                         and 15 May 1987, respectively, and the associated
preliminary ruling in the case of Landeshauptstadt
                                                                         tendering securities lodged pursuant to Article 12 of
Hannover v. Almut Sattler on the following questions :
                                                                         Commission Regulation ( EEC ) No 1354/83 ( 3 ) of 17 May
                                                                         1983 , may a legal person who subsequently failed to fulfil
1 . ( a ) Does Community law require precedence of                       its obligations and did not effect delivery be also the subject
            application or validity ( under the second paragraph         of a claim for payment of compensation on the part
            of Article 5 and Article 189 of the EC Treaty ) over         of the Belgisch Interventie- en Restitutiebureau ( Belgian
            national provisions of the Member States which               intervention and restitution agency ) pursuant to Article 25
            could or would be applicable, by way of                      ( 1 ) of Regulation ( EEC ) No 1354/83 when all the tendering
            concurrence of claims, to the same factual situation         securities have been declared forfeit to that agency ?
            and with the same aim of supporting claims to
            equal treatment in occupational pension schemes,             (!) OJ No L 34 , 3 . 2 . 1987, p . 8 .
            as for example in Germany — generally — the                  ( 2 ) OJNoL 131 , 15 . 5 . 1987, p . 1 .
            employment law principle of equal treatment or —             ( 3 ) OJNoL 142 , 17. 5 . 1983 , p . 1 .
            specifically — paragraph 2 ( 1 ) of the Beschafti­
            gungsforderungsgesetz ( Employment Promotion
            Law ) 1985 ?
      ( b ) Does the precedence of Community law in such a
            conflict, where Community law confers benefits               Reference for a preliminary ruling from the Tribunal
            under occupational pension schemes only if and in            Superior de Justicia de Madrid, Sala de lo Contencioso­
            so far as they are attributable to periods of                Administrativo, Sección Primera, by order of that court of
            employment after 17 May 1990, whereas the                    3 July 1996 in the case of Soldred SA v. Administración
            national provisions regulate the same factual                                          General del Estado
            situation differently in that they do not exclude                                         Case C-347/96 )
            retroactive effect, apply generally ?
                                                                                                       ( 96/C 370/ 18 )
      (c ) Does such precedence exist only if the economic
            objective of Article 119, which exists alongside the
            social objective, namely the creation of equal                Reference has been made to the Court of Justice of the
            competitive opportunities, is specifically affected ?         European Communities by order of the Tribunal Superior
 ---pagebreak--- No C 370/8            1 EN                      Official Journal of the European Communities                                            7 . 12 . 96
de Justicia de Madrid ( High Court of Justice, Madrid ),                      ruling in the criminal proceedings pending before that court
Sala de lo Contencioso-Administrativo, Seccion Primera                        against Alessandro Pozzoli and Donatella Calfa on the
( Division for Contentious Administrative Proceedings, First                  following questions:
Chamber), of 3 July 1996, which was received at the Court
Registry on 21 October 1996 , for a preliminary ruling in
the case of Soldred SA v. Administracion General del Estado
( General State Administration ) on the following questions :                 1 . Is a provision of national law compatible with the
                                                                                  provisions of Community law referred to in the grounds
                                                                                  of this order and, in particular, with the provisions of
                                                                                  Articles 8 ( 1 ) and ( 2 ), 8a ( 1 ), 48 , 52 and 59 of the EC
1 . Properly construed, does Council Directive 69/335/EEC                         Treaty, the provisions of the relevant directives also
      of 17 July 1969 ( as subsequently amended by Directives                     referred to in the grounds hereof, or with other relevant
      73/79/EEC and 73/80/EEC of 9 April 1973 , 74/553/                           provisions of Community law concerning freedom of
      EEC of 7 November 1974 and 85/303/EEC of 10 June                            movement for persons and services, and with the
      1985 ), in particular Articles 4 ( 1 ) ( a ), 5 ( 1 ) ( a ), 5 ( 2 ), 7     Community law principle of equal treatment enshrined
      and 10 ( a ), mean that, if the legislation of a Member                     in Article 7 of the EC Treaty, where such provision of
      State provides for a tax on the formation of a public                       national law requires the national court, unless there
      limited liability company at the rate of 1% , calculable                    are good grounds, particularly of a family nature, for
      in all cases on the nominal value of the share capital,                     not doing so, to order the permanent exclusion of a
      even where that capital has not been paid up in full , a                    national of another Member State of the European
      tax of 0,5% may not then be levied on the contribution                       Community for reasons of public order and public
      of the part of the capital not previously paid up ?                         security, solely on the ground that the national of
                                                                                  another Member State, whilst lawfully staying in the
                                                                                   host state in order to receive tourist services, committed
                                                                                  the offences of obtaining drugs for his own exclusive
                                                                                   use and the use of drugs, and where such exclusion
2.    Is the limitation in Article 10 of Directive 69/335/EEC
                                                                                  entails for the offender a legal bar on his returning to
      also applicable even though the second payment of tax                       the country — unless authorized after a three-year
      does not specifically relate to a capital contribution but                   period by the Minister of Justice in his discretion — in
      falls to be levied on the document recording that                            order to pursue the activities provided for by the
      contribution, where the recording thereof is a                               abovementioned provisions of Community law, and
      mandatory requirement under domestic company law                             where in the case of such an offence being committed
      and the rate of 0,5% specifically relates to the amount                      by a national of the host state the same punishment of
      of the contribution recorded in the document ?
                                                                                   imprisonment is imposed, though not any other
                                                                                   analogous penalty, such as a residence restriction ,
                                                                                   which is imposed on a national of the host state only if
                                                                                   a term of imprisonment for a more serious offence
 3 . Does the aforesaid Directive 69/335/EEC ( as amended )                        is imposed, such as for dealing, and is purely
      have direct effect, and does it affect, and possibly                         discretionary ?
      prevail over, the provisions of national law in the event
      that those provisions cannot be interpreted in a manner
      compatible with the Directive ?
                                                                              2 . Should exclusion by the host country under such a
                                                                                   provision of national law ( as described in question 1
                                                                                   above ) of the national of another Member State
                                                                                   be deemed compatible with the abovementioned
                                                                                   provisions of Community law where, in connection
                                                                                   with exclusion, the court so ordering is left with no
                                                                                   discretion, other than that relating to the important
                                                                                   reasons, in particular of a family nature, in determining
                                                                                   whether the offender's continued residence in the host
 Reference for a preliminary ruling by the Areios Pagos                            country might be justified, is such a measure to be
 ( Greece ) by judgment of that court of 25 June 1996 in the                       regarded as infringing the Community principle of
 criminal proceedings pending before that court against                            proportionality, that is to say as being disproportionate
             Alessandro Pozzoli and Donatella Calfa
                                                                                   to the seriousness of the offences ( described above in
                          ( Case C-348/96 )                                        question 1 ) committed by that person, regard being had
                                                                                   to the fact that under national law those offences are
                            ( 96/C 370/ 19 )                                       tried at first instance and are punishable as stated in the
                                                                                   grounds of this order, or to the fact that the exclusion
                                                                                   ordered by the national court is permanent, subject to
                                                                                   authorization by the Minister of Justice in his discretion
                                                                                   for the offender to return after a three-year period to
 Reference has been made to the Court of Justice of the                            the host country from which he was expelled ?
 European Communities by judgment of the Areios Pagos
  ( Supreme Court) ( Greece ) of 25 June 1996, received at the
 Court Registry on 21 October 1996 , for a preliminary