CELEX: C1998/397/40
Language: en
Date: 1998-12-19 00:00:00
Title: Reference for a preliminary ruling from the Hoge Raad der Nederlanden by order of that court of 23 October 1998 in the case of Coreck Maritime GmbH against (1) Handelsveem B.V., (2) V. Berg and Sons Ltd, (3) Man Producten Rotterdam B.V. and (4) The Peoples Insurance Company of China (Case C-387/98)

C 397/22              EN                Official Journal of the European Communities                                   19.12.98
Reference for a preliminary ruling from the Landesgericht              administrative provisions necessary to comply with
St Pölten (Austria) by order of that court of 2 September              Council Directive 93/104/EC of 23 November 1993
1998 in the case of D. (a minor) v. W. on appeal by the                concerning certain aspects of the organisation of
                Österreichischer Bundesschatz                          working time (1), and/or by failing to inform the
                       (Case C-384/98)                                 Commission thereof, the Italian Republic has failed to
                                                                       fulfil its obligations under the EC Treaty; and
                        (98/C 397/38)
                                                                   2. order the Italian Republic to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by order of the Landesgericht
(Regional Court) St Pölten (Austria) of 2 September 1998,          Pleas in law and main arguments adduced in support:
which was received at the Court Registry on 26 October
1998, for a preliminary ruling in the case of D. (a minor)
v. W. on appeal by the Österreichischer Bundesschatz on            Under Article 189 of the EC Treaty, according to which a
the followqing questions:                                          directive is to be binding, as to the result to be achieved,
                                                                   upon each Member State to which it is addressed,
                                                                   Member States are required to observe the time-limits laid
1. Is Article 13A(1)(c) of the Sixth Council Directive 77/
                                                                   down in directives for their transposition. That time-limit
     388/EEC of 17 May 1977 on the harmonisation of the
                                                                   expired on 23 November 1996 without the Italian
     laws of the Member States relating to turnover
                                                                   Republic having brought into force the necessary
     taxes (1) to be interpreted as meaning that the
                                                                   provisions in order to comply with the directive referred
     exemption from turnover tax laid down by that
                                                                   to in the Commission's application.
     provision extends also to medical services which a
     doctor in his capacity as a court expert provides on
     the instructions of the Court, in particular by               (1) OJ L 307, 13.12.1993, p. 18.
     anthropologico-genetic investigations in the context of
     a paternity dispute?
2. If Question 1 is answered in the affirmative: does that
     provision of the directive preclude application of a
     provision of national law which entitles (inter alia)
     doctors under certain conditions effectively to waive         Reference for a preliminary ruling from the Hoge Raad
     the said exemption from turnover tax?                         der Nederlanden by order of that court of 23 October
                                                                   1998 in the case of Coreck Maritime GmbH against (1)
                                                                   Handelsveem B.V., (2) V. Berg and Sons Ltd, (3) Man
(1) OJ L 145, 13.6.1977, p. 1.                                     Producten Rotterdam B.V. and (4) The Peoples Insurance
                                                                                          Company of China
                                                                                           (Case C-387/98)
                                                                                            (98/C 397/40)
Action brought on 26 October 1998 by the Commission
 of the European Communities against the Italian Republic          Reference has been made to the Court of Justice of the
                                                                   European Communities by order of the Hoge Raad der
                       (Case C-386/98)
                                                                   Nederlanden (Supreme Court of the Netherlands) of
                        (98/C 397/39)                              23 October 1998, received at the Court Registry on
                                                                   29 October 1998, for a preliminary ruling in the case of
                                                                   Coreck Maritime GmbH against (1) Handelsveem B.V.,
                                                                   (2) V. Berg and Sons Ltd, (3) Man Producten Rotterdam
An action against the Italian Republic was brought before
the Court of Justice of the European Communities on                B.V. and (4) The Peoples Insurance Company of China on
                                                                   the following questions:
26 October 1998 by the Commission of the European
Communities, represented by Pieter Jan Kuijper and
Antonio Aresu, Legal Advisers, acting as Agents, with an
address for service in Luxembourg at the Office of Carlos          1. Must the first sentence of Article 17 of the Brussels
Gómez de la Cruz, of its Legal Service, Wagner Centre,                 Convention (in particular, the words have agreed'),
Kirchberg.                                                             read in conjunction with the case-law of the Court of
                                                                       Justice according to which the purpose of Article 17
                                                                       is to ensure that the parties have actually consented to
The applicant claims that the Court should:                            such a clause, which derogates from the ordinary
                                                                       jurisdiction rules laid down in Articles 2, 5 and 6 of
                                                                       the Convention, and that their consent is clearly and
1. declare that, by failing to adopt and bring into force              precisely demonstrated' (emphasis added by the Hoge
     within the prescribed period the laws, regulations or             Raad), be interpreted as meaning:
 ---pagebreak--- 19.12.98              EN                  Official Journal of the European Communities                                     C 397/23
    (a) that, in order for a clause vesting jurisdiction in a                  possibly depend to some extent on the contents
         given court, as provided for in that article, to be                   of the bill of lading and/or the particular
         valid as between the parties, it is necessary in each                 circumstances of the case, such as the particular
         case for that clause to be formulated in such a                       state of knowledge of the third party concerned
         way that its wording alone makes it quite clear to                    or the fact that the latter has a long-standing
         (inter alia) persons other than the parties Ð and                     business relationship with the carrier and, if so,
         in particular to the court concerned Ð which                          can the third party be deemed to be aware of the
         court is to have jurisdiction to settle disputes                      particular circumstances of the case if the contents
         arising from the legal relationship in the context                    of the bill of lading do not make it sufficiently
         of which that clause is stipulated, or at least that                  clear to him that the clause in question is validly
         the identity of that court can be easily ascertained;                 binding on him?
         or
                                                                     4. If the answer to Question 3(a) is as set out in the
    (b) that Ð whether by virtue of a rule which has at                   second alternative postulated therein, which national
         all material times been aplicable or in                          law governs the decision as to whether the third party,
         consequence of or in connection with the                         upon acquiring the bill of lading, succeeded to the
         progressive relaxation of the rules arising from the             shipper's rights and obligations, and what is the
         successive amendments made to Article 17 of the                  position if the national law in question has not
         Brussels Convention, together with the case-law of               hitherto provided, either in its legislation or in its case-
         the Court of Justice concerning the circumstances                law, an answer to the question whether the third
         in which such a clause is to be regarded as having               party, upon acquiring the bill of lading, succeeds to
         been validly concluded Ð in order for such a                     the shipper's rights and obligations?
         clause to be valid, it is enough that the parties
         themselves clearly know, on the basis (inter alia)
         of the (further) circumstances of the case, which
         court is to have jurisdiction to settle such
         disputes?
                                                                     Action brought on 29 October 1998 by the Commission
2. Does Article 17 of the Brussels Convention also                   of the European Communities against the Hellenic
    govern the validity, as against a third party holding a                                     Republic
    bill of lading, of a clause which specifies as the forum                                 (Case C-388/98)
    having jurisdiction to settle disputes under this Bill of
    Lading' the courts of the place where the carrier has                                     (98/C 397/41)
    his principal place of business' and which is laid
    down in a bill of lading also containing an identity of
    carrier' clause, that bill of lading being issued for the        An action against the Hellenic Republic was brought
    purposes of the carriage of goods, where (a) the                 before the Court of Justice of the European Communities
    shipper and one of the possible carriers are not                 on 29 Octrober 1998 by the Commission of the European
    established in a Contracting State and (b) the second            Communities, represented by Maria Kondou-Durande, of
    possible carrier is indeed established in a Contracting          its Legal Service, with an address for service in
    State but it is not certain whether his principal place         Luxembourg at the Office of Carlos Gómez de la Cruz, of
    of business' is situated in that State or in a State which       its Legal Service, Wagner Centre, Kirchberg.
    is not a party to the Convention?
                                                                     The Commission claims that the Court should:
3. If the answer to Question 2 is in the affirmative:
                                                                     Ð declare that, by not adopting the laws, regulations and
    (a) Does the fact that the jurisdiction clause                        administrative provisions necessary to comply with
         contained in the bill of lading must be regarded as              Council Directive 94/67/EC (1) of 16 December 1994
         valid as between the carrier and the shipper mean                on the incineration of hazardous waste, or by not
         that it is also binding on any third party holding               communicating those measures to the Commission, the
         the bill of lading, or is that the position only as              Hellenic Republic has failed to fulfil its obligations
         regards a third party who, upon acquiring the bill               under that directive;
         of lading, succeeds by virtue of the applicable
         national law to the shipper's rights and
         obligations?                                                Ð order the Hellenic Republic to pay the costs.
    (b) Assuming that the jurisdiction clause contained in           Pleas in law and main arguments adduced in support:
         the bill of lading must be regarded as valid as
         between the carrier and the shipper, does the
         answer to the question whether it is also binding           The Member States are required by the binding character
         on a third party holding the bill of lading also            of the third paragraph of Article 189 and of Article 5 of