CELEX: C2000/034/19
Language: en
Date: 2000-02-05 00:00:00
Title: Case C-425/99: Reference for a preliminary ruling by the Bundessozialgericht by order of that Court of 5 August 1999 in the case of Akhtar Seyed Abbasy against Landeskreditbank Baden-Württemberg-Förderbank

C 34/10                 EN                    Official Journal of the European Communities                                           5.2.2000
the Portuguese Republic has failed to fulfil its obligations                  nationals of a non-member country if such persons have
under Articles 6(2), 8(2)(a), 13 and 17 of Directive 75/439/EEC               no right of free movement under the Treaty of 25 March
as amended by Council Directive 87/101/EEC and under the                      1957 establishing the European Community, as amended
first paragraph of Article 10 and the third paragraph of                      by the Treaty of 7 February 1992 on European Union?
Article 249 of the EC Treaty;
                                                                         2. If the answer to Question 1 is in the affirmative:
(b) Order the Portuguese Republic to pay the costs.
                                                                              If a person living with a employed person, who is a
                                                                              recognised refugee, in a cohabitation relationship similar
Pleas in law and main arguments                                               to marriage and who looks after and raises the couple’s
                                                                              child also to be regarded as a member of the family
                                                                              within the meaning of Article 1(f)(i) of Regulation (EEC)
The mandatory nature of the provisions of the third paragraph
                                                                              No 1408/71?
of Article 249 and the first paragraph of Article 10 of the EC
Treaty requires Member States to adopt the measures necessary
                                                                         3. If the answer to Question 1 is in the affirmative:
to transpose directives addressed to them into their domestic
law before the expiry of the period prescribed for doing so and
                                                                              Does Regulation (EEC) No 1408/71 also apply in the case
forthwith to inform the Commission thereof. That period,
                                                                              where a refugee has travelled directly to a Member State
which is laid down in Article 2 of Directive 87/101/EEC,
                                                                              from a non-member country and has not moved within
expired on 1 January 1990 without Portugal having so far
                                                                              the Community?
brought into force the abovementioned provisions.
                                                                         4. If the answers to Questions 1 and 3 are in the affirmative,
(1) Council Directive 78/319/EEC of 20 March 1978 on toxic and                but Question 2 falls to be answered in the negative:
    dangerous waste (OJ 1978 L 84, p. 43).
(2) Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975            Do provisions of Community law preclude national rules
    L 194, p. 39).                                                            under which, even in the event of recognition as a refugee,
(3) Council Directive 91/156/EEC of 18 March 1991 amending                    entitlement to family benefits cannot exist retroactively
    Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).                      but arises only once a residence permit has been issued?
(4) Council Directive 91/689/EEC of 12 December 1991 on hazard-
    ous waste (OJ 1991 L 377, p. 20).
(5) Council Directive 75/439/EEC of 16 June 1975 on the disposal         (1) JO L 149 of 5.7.1971, p. 2 ; OJ, English Special Edition 1971 (II),
    of waste oils (OJ 1975 L 194, p. 23).                                    p. 416.
(6) Council Directive 87/101/EEC of 22 December 1986 amending
    Directive 75/439/EEC on the disposal of waste oils (OJ 1987 L
    42, p. 43).
                                                                         Reference for a preliminary ruling by the Bundessozial-
                                                                         gericht by order of that Court of 5 August 1999 in the
                                                                         case of Akhtar Seyed Abbasy against Landeskreditbank
Reference for a preliminary ruling by the Bundessozial-                                 Baden-Württemberg-Förderbank
gericht by order of 5 August 1999 in the case of Vetharani-
gam Pathminidevi v Landeskreditbank Baden-Württem-
                                                                                                  (Case C-425/99)
                         berg-Förderbank
                                                                                                   (2000/C 34/19)
                         (Case C-407/99)
                                                                         Reference has been made to the Court of Justice of the
                          (2000/C 34/18)
                                                                         European Communities by order of the Bundessocialgericht
                                                                         (Federal Social Court) of 5 August 1999, received at the Court
Reference has been made to the Court of Justice of the                   registry on 3 November 1999, for a preliminary ruling in
European Communities by order of 5 August 1999 from the                  the case of Akhtar Seyed Abbasy against Landeskreditbank
Bundessozialgericht (Federal Social Court), which was received           Baden-Württemberg-Förderbank, on the following question:
at the Court Registry on 25 October 1999, for a preliminary
ruling in the case of Vetharanigam Pathminidevi v Landeskre-             1. Is Regulation (EEC) No 1408/71 (1) of the Council of
ditbank Baden-Württemberg-Förderbank on the following                         14 June 1971 on the application of social security schemes
questions:                                                                    to employed persons and their families moving within the
                                                                              Community applicable to refugees and members of their
1. Does Council Regulation (EEC) No 1408/71 (1) of 14 June                    family who are nationals of a third country if they do not
     1971 on the application of social security schemes to                    enjoy the right of freedom of movement under the Treaty
     employed persons, to self-employed persons and to mem-                   establishing the European Communities of 25 March
     bers of their families moving within the Community apply                 1957, as amended by the Treaty on European Union of
     to refugees and to members of their families who are                     7 February 1992?
 ---pagebreak--- 5.2.2000               EN                    Official Journal of the European Communities                                        C 34/11
2. If Question 1 is to be answered in the affirmative:                  3. Is the priority of an infringement action brought by the
                                                                            claimant in his own name but on behalf of the patent
     Does Regulation (EEC) No 1408/71 also apply if a refugee               owner preserved if the patent at issue is transferred to the
     in employment and members of his family travelled from                 claimant in the course of the proceedings and he is
     a third country to a Member State direct, without moving               thenceforth no longer asserting the rights of another but
     within the Community?                                                  his own rights as owner of the patent?
3. Does Community law preclude a national rule which                    4. Does the priority of an action for a negative declaration
     makes entitlement to family benefits conditional on the                brought against the owner of the patent, intended to clarify
     actual grant of a right of residence, even if the refugee has          whether a certain product infringes his patent, continue to
     been granted the right to asylum?                                      apply if the patent at issue is transferred during the
                                                                            proceedings and the action for a negative declaration is
                                                                            thereupon directed against the new owner of the patent?
(1) OJ L 149 of 5.7.1971, p. 2.
Reference for a preliminary ruling from the Oberlandes-                 Action brought on 5 November 1999 by the Commission
gericht Düsseldorf by order of that court of 30 September               of the European Communities against the Portuguese
1999 in the case of Connaught Laboratories Inc. v                                                   Republic
(1) SmithKline Beecham Pharma GmbH and (2) SmithK-
         line Beecham Biologicals Manufacturing S.A.
                                                                                                (Case C-429/99)
                         (Case C-426/99)
                                                                                                 (2000/C 34/21)
                          (2000/C 34/20)
                                                                        An action against the Portuguese Republic was brought before
                                                                        the Court of Justice on 5 November 1999 by the Commission
Reference has been made to the Court of Justice of the
                                                                        of the European Communities, represented by Ana Maria Alves
European Communities by an order of the Oberlandesgericht
                                                                        Vieira and Barry Doherty, of its Legal Service, acting as Agents,
(Higher Regional Court) Düsseldorf of 30 September 1999,
                                                                        with an address for service in Luxembourg at the office of
which was received at the Court Registry on 3 November
                                                                        Carlos Gómez de la Cruz, also of its Legal Service, Wagner
1999, for a preliminary ruling in the case of Connaught
                                                                        Centre, Kirchberg.
Laboratories Inc. v (1) SmithKIine Beecham Pharma GmbH
and (2) SmithKline Beecham Biologicals Manufacturing S.A.
on the following questions on the interpretation of the
                                                                        The applicant claims that the Court of Justice should:
first paragraph of Article 21 of the Brussels Convention on
jurisdiction and the enforcement of judgments in civil and
commercial matters (OJ 1978 L 304, p. 36), as amended by                — Declare that the Portuguese Republic has failed to fulfil its
the Accession Conventions of 9 October 1978 (OJ 1978                        obligations under the second indent of Article 2(4) of
L 304, p. 1), 25 October 1982 (OJ 1982 L 388, p. 1) and                     Directive 90/388/EEC (1) as amended by Directive
26 May 1989 (OJ 1989 L 285, p. 1):                                          96/19/EC (2);
1. Does a cause of action pursued in an alternative claim               — Order the Portuguese Republic to pay the costs.
     already become pending (‘anhängig’) with the event which
     under national procedural law in principle makes it a lis
     pendens (in this case, service of the summons), or does it
     become a lis pendens for the purposes of Article 21 of the         Contentions and principal arguments adduced in support
     Brussels Convention only at the time when (additionally)
     the procedural condition subject to which the alternative
     claim is put forward is fulfilled?                                 The Commission considers that ‘call-back’ services are not
                                                                        voice telephony services within the meaning of Commission
2. Who is to be regarded as the ‘party’ where the claimant,             Directive 90/388/EEC of 28 June 1990 on competition in the
     on the basis of an authority to bring proceedings given by         markets for telecommunications services and that therefore
     the substantive owner of the right, asserts the latter’s rights    Article 3 of Commission Decision 97/310/EC does not grant
     (the rights of another) in his own name (‘Prozessstand-            any additional implementation period regarding the supply of
     schaft’) — the nominal claimant bringing the action or the         such services, which should already have been liberalised in
     substantive owner of the rights?                                   Portugal upon the entry into force of that directive. Portugal