CELEX: C2001/331/10
Language: en
Date: 2001-11-24 00:00:00
Title: Case C-340/01: Reference for a preliminary ruling by the Oberster Gerichtshof, Republic of Austria, by order of that court on 25 June 2001, in the case of Carlito Abler and 21 others, intervener: Sanrest Großküchen-Betriebsgesellschaft mbH against Sodexho MM Catering Gesellschaft

24.11.2001             EN                    Official Journal of the European Communities                                          C 331/7
Reference for a preliminary ruling by the Oberster                      (Regional Court) Korneuburg of 4 September 2001, which was
Gerichtshof, Republic of Austria, by order of that court                received at the Court Registry on 11 September 2001, for a
on 25 June 2001, in the case of Carlito Abler and                       preliminary ruling in the case of Pato Plastik Robert Frank
21 others, intervener: Sanrest Großküchen-Betriebsge-                   GmbH v CAROPACK Handelsgesellschaft mbH on the follow-
sellschaft mbH against Sodexho MM Catering Gesellschaft                 ing questions:
                         (Case C-340/01)
                                                                        1.1. Are plastic carrier bags ‘packaging’ within the meaning
                                                                              of European Parliament and the Council Directive
                         (2001/C 331/10)                                      94/62/EC 20 December 1994 (1), particularly Article 3(1)
                                                                              thereof,
Reference has been made to the Court of Justice of the                        (a)    if a retailer offers them as an article in the cash-
European Communities by order of the Oberster Gerichtshof,                           desk area and hands them over to customers upon
Republic of Austria (Supreme Court) of 25 June 2001, received                        request against payment so that the purchased
at the Court Registry on 10 September 2001, for a preliminary                        goods can be taken away, or
ruling in the case of Carlito Abler and 21 others, intervener:
Sanrest Großküchen-Betriebsgesellschaft mbH against Sodex-
ho MM Catering Gesellschaft, on the following question:
                                                                              (b) if a retailer hands them over to customers for the
                                                                                     same purpose after the price has been paid for the
Is there a transfer of part of a business within the meaning of                      purchased goods, regardless whether customers ask
Article 1 of Council Directive 77/187/EEC of 14 February                             for them and without obligatory payment of any
1977 (1) on the approximation of the laws of the Member                              extra charge, and they are then filled with the
States relating to the safeguarding of employees’ rights in the                      purchased goods?
event of transfers of undertakings, businesses or parts of
businesses where a hospital authority, which has previously
employed a catering undertaking to supply meals and bever-
ages to patients and hospital staff at a price based on a day of        1.2.1. First additional question, in the event that one of the
catering per person, and to that end has made available to that                 above questions is answered in the affirmative on the
undertaking water and energy as well as its service premises                    basis of the German version:
(hospital kitchen) together with the necessary equipment,
transfers, after giving notice of termination of that contract,
those operations and the assets previously made available to                    Is the result different if, for the definition of the word
that first catering undertaking to a second catering undertaking                ‘packaging’ in Article 3(1) of the Directive, not the
which does not take over the assets (staff, stock, accounting                   German text, which only has the words ‘von Waren’,
material and menu, diet, recipe or general records) brought in                  but the French or Italian text [Or. 2] is deemed decisive,
by the first catering undertaking itself?                                       which both refer to specific goods (‘marchandises
                                                                                données’ and ‘determinate merci’), and are the plastic
                                                                                carrier bags made by the plaintiff in this case not
(1) OJ 1997 L 61, p. 26.                                                        packaging for the purposes of the Directive because
                                                                                they are filled with any goods at all (rather than with
                                                                                predetermined goods), and in this case which text
                                                                                applies?
                                                                        1.2.2. Second additional question, in the event that one of
                                                                                the above questions is answered in the negative:
Reference for a preliminary ruling, by order of the
Landesgericht Korneuburg of 4 September 2001 in the
case of Pato Plastik Robert Frank GmbH v CAROPACK                               May the Austrian legislature or the Commission make
                    Handelsgesellschaft mbH                                     products which are not packaging under the Directive
                                                                                subject to the rules governing packaging laid down in
                         (Case C-341/01)                                        the Directive or to similar rules?
                         (2001/C 331/11)                                2.   Is it in conformity with Community law for the operator
                                                                             of the collection and recovery system set up in Austria to
                                                                             charge a fee (Lizengebühr) even for carrier bags not
                                                                             covered by Directive 94/62/EC solely on the ground that
Reference has been made to the Court of Justice of the                       the bags bear a mark (‘der Grüne Punkt’) over which the
European Communities by order of the Landesgericht                           operator disposes?