CELEX: C2000/163/37
Language: en
Date: 2000-06-10 00:00:00
Title: Case C-133/00: Reference for a preliminary ruling by the Employment Appeal Tribunal, United Kingdom, by order of that court of 7 April 2000, in the case of Mrs J.R. Bowden, Mrs J.L. Chapman and Mrs J.J. Doyle against Tuffnells Parcels Express Ltd

C 163/20                 EN                    Official Journal of the European Communities                                      10.6.2000
Pleas in law and main arguments                                           Reference for a preliminary ruling by the Employment
                                                                          Appeal Tribunal, United Kingdom, by order of that court
                                                                          of 7 April 2000, in the case of Mrs J.R. Bowden, Mrs J.L.
The pleas in law and main arguments are the same as in                    Chapman and Mrs J.J. Doyle against Tuffnells Parcels
Case C-105/00 (2); the period for implementation expired on                                          Express Ltd
13 October 1998.
                                                                                                   (Case C-133/00)
(1) OJ L 328 of 28 November 1997, p. 1.
(2) See p. 10 of this Official Journal.                                                            (2000/C 163/37)
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by an order of the Employment
                                                                          Appeal Tribunal, United Kingdom, of 7 April 2000, which
                                                                          was received at the Court Registry on 10 April 2000, for a
                                                                          preliminary ruling in the case of Mrs J.R. Bowden, Mrs J.L.
                                                                          Chapman and Mrs J.J. Doyle against Tuffnells Parcels Express
                                                                          Ltd, on the following questions:
                                                                          1. Given that the informed view of responsible bodies that
Reference for a preliminary ruling by the Länsrätten i                        amendment is needed if a legislative provision is to achieve
Norrbottens Län of 28 March 2000 in the case of Ingemar                       a certain effect is likely to be consistent only with a view
        Nilsson against Länsstyrelsen Norrbottens Län                         that the provision, before amendment, does not have that
                                                                              effect, and given also the previously expressed views of the
                                                                              ESC, the European Parliament, the Commission and the
                           (Case C-131/00)                                    Council’s Common Position Paper on the subject of the
                                                                              exceptions to Article 1.3 of Directive 93/104/EEC(1)
                                                                              suggesting that, as yet, there is an exception from the
                           (2000/C 163/36)                                    benefits of the Directive of all who work in the road
                                                                              transport sector of activity but that such an exception has
                                                                              been and is entirely unjustified, how far, if at all, are we
Reference has been made to the Court of Justice of the                        enabled to infer from such non-legislative materials either
European Communities by order of the Länsrätten i Norrbot-                    that:
tens Län of 28 March 2000, received at the Court Registry on
6 April 2000, for a preliminary ruling in the case of Ingemar
                                                                              (a) as yet the proper construction of the wording of Article
Nilsson against Länsstyrelsen i Norrbottens Län on the follow-
                                                                                  1.3 is one which excludes all such persons, or
ing question:
                                                                              (b) that such a reading would not represent a just and
With reference to Article 5 of Council Regulation (EEC) No                        purposive construction of the Article?
3508/92 (1), the Court of Justice is requested to give a
preliminary ruling on the question whether that article is to be
understood as meaning that entitlement to aid is excluded                 2. Whatever the conclusion is to Question 1, if, in the course
where notes have not been made in the animal keeper’s register                of our task of interpreting our national laws in the light of
(stall journal) (2).                                                          the wording and purpose of the Directive, we encounter
                                                                              what we take to be a broad purpose (‘every worker in the
                                                                              European Community will have a right to … annual paid
                                                                              leave’) but also, given no less prominence in the very same
(1) Council Regulation (EEC) No 3508/92 of 27 November 1992                   provision, a wording (‘shall apply to all sectors of activity
    establishing an integrated administration and control system for          ... with the exception of .... road .... transport’) which
    certain Community aid schemes (OJ 1992 L 355, p. 1).                      appears to be significantly destructive of that broad
(2) Kept in accordance with Article 7 of Council Regulation (EC)              purpose, at all events on the facts before us, are we entitled
    No 820/97 of 21 April 1997, establishing a system for the                 (and if so, by reference to what principles) to apply our
    identification and registration of bovine animals and regarding           national laws to the facts of the particular case before us
    the labelling of beef products (OJ 1997 L 117, p. 1) and the State        so as to give effect to that broad purpose notwithstanding
    Agricultural Board’s rules (SJVFS 1994:190) on the marking and
                                                                              the clarity of the wording appearing to exclude that
    registration of animals.
                                                                              purpose on such facts?
                                                                          3. To raise similar issues in a less abstract way, are all workers
                                                                              employed in the road transport sector of activity referred
                                                                              to in Article 1.3 necessarily excluded from the scope of
                                                                              Directive 93/104?
 ---pagebreak--- 10.6.2000               EN                    Official Journal of the European Communities                                       C 163/21
4. If all such workers are not necessarily excluded, what test              accordance with the provisions of this Article, that univer-
     should the National Court apply in order to determine                  sal service obligations represent an unfair burden on an
     which workers employed in the road transport sector of                 organization’ that it may establish a mechanism for sharing
     activity are excluded by Article 1.3 and which are not?                the net cost of the universal service obligations. In the
                                                                            Commission’s view, there is nothing in the relevant
                                                                            documentation to show that a national system was needed
(1) Council Directive 93/104/EC of 23 November 1993 concerning              to share the net cost or that the universal service obligations
    certain aspects of the organization of working time (OJ L 307,          represent an unfair burden for France Télécom. On the
    13.12.1993, p. 18).                                                     contrary, France Télécom enjoyed an almost total mo-
                                                                            nopoly in 1997 over fixed telephony.
                                                                         — The timetable for the successive stages leading to the
                                                                            rebalancing of tariffs was not notified to the Commission
                                                                            even though such notification was required by 11 January
Action brought on 17 April 2000 by the Commission of                        1997. That non-notification means that the Commission
 the European Communities against the French Republic                       is not in a position to determine that France has fulfilled
                                                                            its obligations under Article 4e of Directive 90/388/EEC as
                          (Case C-146/00)                                   amended by Directive 96/19/EC in conjunction with the
                                                                            first paragraph of Article 2 of Directive 96/19/EC. Even
                                                                            supposing that that tariff of 65 francs excluding tax given
                          (2000/C 163/38)                                   in the decree on the universal service as the balancing tariff
                                                                            is in fact that tariff, the new subscription tariff of 64.68
An action against the French Republic was brought before the                francs excluding tax in force since 1 March 1999 is still
Court of Justice on 17 April 2000 by the Commission of the                  slightly lower than the latter. The French authorities thus
European Communities, represented by Barry Doherty, of its                  confirm that as from 1 March 1999 the cost of the
Legal Service, and Fabienne Siredey-Barnier, a national civil               imbalance until the end of the year is still 16 million
servant seconded to the Legal Service, acting as Agents, with               francs, financed by the universal service fund, and thus
an address for service in Luxembourg at the office of Carlos                admit that the rebalancing has not been completed in
Gómez de la Cruz, also of its Legal Service, Wagner Centre,                accordance with their own criteria. Consequently, the
Kirchberg.                                                                  French authorities should either have confirmed that
                                                                            France Télécom was authorised to continue with the
                                                                            rebalancing of its tariffs or notified the timetable provided
The Commission of the European Communities claims that                      for in Article 4c of Directive 90/388/EEC.
the Court of Justice should:
1. Declare that,
                                                                         — Contrary to Article 5(3) of Directive 97/33/EC in conjunc-
     — by failing to comply with Article 4c of Directive                    tion with Annex III thereto, the French rules provide for
         90/388/EEC (1), as amended by Directive 96/19/EC (2),              the taking into account, for the purpose of calculating the
         and                                                                net cost of the universal service, of profitable subscribers,
                                                                            and this unduly increases the amount of the burden which
     — by failing to observe Article 5(1), (3), (4) and (5) of              may give rise to compensation, to the detriment of
         Directive 97/33/EC (3),                                            new market entrants. Moreover, the calculation formula
                                                                            adopted in Article R.20-32 of the French Post and
     the French Republic has failed to fulfil its obligations;              Telecommunications Code does not allocate the burdens
                                                                            associated with the financing of the universal service to
2. Order the French Republic to pay the costs.                              each undertaking in accordance with objective criteria as
                                                                            required by Article 4c of Directive 90/388/EEC. Finally, it
                                                                            does not take account of the principle of transparency as
Pleas in law and main arguments                                             required by Directive 97/33/EC.
— There was no legal basis for France to require mobile
     phone operators to contribute to the universal service in
     1997. Contrary to the impression given by the French                — Certain components of the universal service cost are fixed
     authorities, recitals 4 and 26 in the preamble to Directive            on a flat-rate basis contrary to the obligation to undertake
     96/19/EC do not create obligations not appearing in the                a specific calculation (Article 5(3) of Directive 97/33/EC).
     operative part of the directive but indicate that for so long          Thus, the net cost of unprofitable subscribers should not
     as the long-standing operator enjoys exclusive rights for              have been fixed on a flat-rate basis. The net cost of the
     the supply of the voice telephony service, no additional               universal service for 1997 should not have been fixed on
     measure is required in order to ensure that the universal              a flat-rate basis. And the contribution paid to France
     service is provided. Article 5(1) of Directive 97/33 is even           Télécom to compensate it for the cost of certain social
     clearer: it is only where ‘a Member State determines, in               tariffs has been fixed in an imprecise manner.