CELEX: C1995/054/21
Language: en
Date: 1995-03-04 00:00:00
Title: Reference for a preliminary ruling from the Tribunal de Grande Instance de Morlaix by judgment of that court of 14 December 1994 in the case of E.A.R.L. de Kerlast v. 1. Union Régionale de Coopératives Agricoles (UNICOPA) and 2. Coopérative du Trieux (Case C-15/95)

No C 54/12           ΓΕΝ                    Official Journal of the European Communities                                      4 . 3 . 95
down in Article 15 of the Directive with regard to alcoholic                — Council Directive 92/40/EEC of 19 May 1992 ( l )
beverages of less than 10 degrees strength.                                     introducing Community measures for the control of
                                                                                avian influenza, and
(!) OJ No L 298 , 7. 10. 1989, p. 23 .
                                                                            — Council Directive 92/48/EEC of 16 June 1992 laying
                                                                                down the minimum hygiene rules applicable to
                                                                                fishery products caught on board certain vessels in
                                                                                accordance with Article 3 ( 1 ) (a ) (i ) of Directive
                                                                                91/493/EEC (2),
Reference for a preliminary ruling from the Arbeitsgericht
Bonn by order of that court of 30 November 1994 in the                      and/or failing to communicate them to the Commission,
case of Ayse Siizen v. Zehnacker Gebaudereinigung GmbH                      the Kingdom of Belgium has failed to fulfil its
      Krankenhausservice, joined party: Lefarth GmbH                        obligations under the penultimate articles of the said
                            Case C-13/95 )                                  directives and under the EC Treaty;
                             ( 95/C 54/19 )
                                                                       2. order the Kingdom of Belgium to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by an order of the Arbeitsgericht                 Pleas in law and main arguments
Bonn (Bonn Labour Court) of 30 November 1994, which
was received at the Court Registry on 1 8 January 1 995, for a         The mandatory nature of the provisions of the third
preliminary ruling in the case of Ayse Siizen v. Zehnacker             paragraph of Article 189 and of the first paragraph of
Gebaudereinigung GmbH Krankenhausservice, joined                       Article 5 of the EEC Treaty is such as to oblige Member
party: Lefarth GmbH, on the following questions:                       States to whom directives are addressed to adopt the
                                                                       measures necessary for the implementation of such
1 . On the basis of the judgments of the Court of Justice of           directives within the time-limit prescribed therein. The
     14 April 1994 in Case C-392/92 ( J ) and 19 May 1992 in           time-limit in question expired on 1 January 1993 but the
     CaseC-29/91 (2), is Directive 77/1 87/EEC ( 3 ) applicable        Kingdom of Belgium has not adopted the necessary
                                                                       measures .
     if an undertaking terminates a contract with an outside
     undertaking in order then to transfer it to another
     outside undertaking?                                              (!) OJ No L 167, 22 . 6.1992, p. 1 .
                                                                       (2 ) OJ No L 187, 7. 7. 1992, p. 41 .
2. Is there a legal transfer within the meaning of the
     directive in the case of the operation described in
     Question 1 even if no tangible or intangible business
     assets are retransferred ?
(M OJ No C 132, 5 . 3 . 1977, p. 4.                                    Reference for a preliminary ruling from the Tribunal de
(2 ) OJ No C 153 , 14 . 5 . 1994, p. 4 .                               Grande Instance de Morlaix by judgment of that court of
(3 ) OJ No L 61 , 18 . 6 . 1992, p. 26 .                               14 December 1994 in the case of E.A.R.L. de Kerlast v. 1 .
                                                                       Union Regionale de Cooperatives Agricoles (UNICOPA)
                                                                                       and 2. Cooperative du Trieux
                                                                                               (Case C-15/95 )
                                                                                                  95/C 54/21
Action brought on 17 January 1995 by the Commission of
the European Communities against the Kingdom of
                                Belgium                                Reference has been made to the Court of Justice of the
                                                                       European Communities by a judgment of the Tribunal de
                           (Case C-14/95 )                             Grande Instance (Regional Court), Morlaix, of
                            ( 95/C 54/20 )                             14 December 1994, which was received at the Court
                                                                       Registry on 18 January 1995, for a preliminary ruling in the
An action against the Kingdom of Belgium was brought                   case of E.A.R.L. de Kerlast against 1 . Union Regionale de
before the Court ofJustice of the European Communities on              Cooperatives Agricoles (UNICOPA) and 2. Cooperative du
17 January 1995 by the Commission of the European                      Trieux on the following questions:
Communities, represented by Gerard Rozet, Legal Adviser,
acting as Agent, with an address for service in Luxembourg             1 . On a proper construction of Article 7 of Council
at the office of Georgios Kremlis, of the Legal Service,                    Regulation ( EEC) No 857/84 (*) are producers
Wagner Centre, Kirchberg.                                                   precluded from entering into joint ventures — which are
                                                                            without legal personality of their own, are not effective
The applicant claims that the Court should:                                 against third parties and are unpublicized — in so far as
                                                                            they constitute a disguised form of quota-leasing, or are
1 . declare that, by not adopting the laws, regulations and                 such ventures authorized as a necessary structural
     administrative provisions necessary in order to comply                 adjustment within the meaning of Article 1 of Council
     with                                                                   Regulation (EEC) No 856/84 (2)?
 ---pagebreak--- 4 . 3 . 95            I EN                  Official Journal of the European Communities                                No C 54/13
2. Must Article 12 (c ) and Article 3a of Regulation (EEC )            fiscal administration, since requests for refunds are usually
     No 857/84 be interpreted as requiring resumption of               revised and transmitted with, according to the complaints
     production by the actual person concerned ?                       received, delays of up to 12 months.
3 . Does Article 40 ( 3 ) of the EEC Treaty preclude a                 The Commission considers that the Spanish authorities'
     decision by a Member State, pursuant to Regulation                lack of cooperation, in not responding to its written
     No 857/84 of 31 March 1984 as amended by Regulation               requests, is by reason of the significant repercussions it has
     ( EEC ) No 764/89 ( 3 ) of 20 March 1989 , prohibiting            in this matter an infringement of Article 5 of the EC
     joint ventures and authorizing joint agricultural                 Treaty.
     holdings partly devoted to dairy farming ?
H OJ No L 90, 1 . 4 . 1984, p . 13 .
(2 ) OJ No L 90, 1 . 4 . 1984, p . 10 .
(3 ) OJ No L 84, 29 . 3 . 1989, p . 2 .                                Action brought on 18 January 1995 by the Commission of
                                                                        the European Communities against the French Republic
                                                                                                  (Case C-17/95 )
                                                                                                   ( 95/C 54/23
                                                                       An Action against the French Republic was brought before
Action brought on 18 January 1995 by the Commission of                 the Court of Justice of the European Communities on
the European Communities against the Kingdom of                        18 January 1995 by the Commission of the European
                                 Spain                                 Communities, represented by Gerard Rozet, Legal Adviser,
                          ( Case C-16/95 )                             acting as Agent, with an address for service in Luxembourg
                                                                       at the office of Georgios Kremlis, of the Legal Service,
                            ( 95/C 54/22 )                             Wagner Centre, Kirchberg.
An action against the Kingdom of Spain was brought before              The applicant claims that the Court should:
the Court of Justice of the European Communities on
18 January 1995 by the Commission of the European                      1 . declare that, by not adopting the laws, regulations and
Communities, represented by Blanca Rodriguez Galindo                        administrative provisions necessary in order to comply
and Enrico Traversa, both of the Legal Service, acting as                   with
Agents, with an address for service in Luxembourg at the
office of Georgios Kremlis, a member of the Legal Service of                — Council Directive 91/67/EEC of 28 January 1991
the Commission, Wagner Centre, Kirchberg.                                        concerning the animal health conditions governing
                                                                                 the placing on the market of aquaculture animals
                                                                                 and products (*),
The applicant claims that the Court should:
                                                                            — Council Directive 91 /628/EEC of 19 November
1 . declare that the Kingdom of Spain has failed to fulfil its                   1991 on the protection of animals during transport
     obligations under the Treaty:                                               and amending Directives 90/425/EEC and
                                                                                 91/496/EEC ( 2), and
     (a ) in not respecting the time-limit of six months for the
           refund of value added tax to taxable persons not                 — Council Directive 92/35/EEC of 29 April 1993
           established in the territory of the country contrary                  laying down control rules and measures to combat
           to Article 7 (4) of the Eighth Directive 79/1072/EEC                  African horse sickness ( 3 ),
           of 6 December 1979 on the arrangements for the
           refund of value added tax to taxable persons not                 and/or by failing to communicate them to the
           established in the territory of the country;                      Commission, the French Republic has failed to fulfil its
                                                                            obligations under the penultimate articles of the said
                                                                             directives and under the EC Treaty;
     ( b) in infringing the duty of cooperation of the Member
           States laid down in Article 5 of the EC Treaty.
                                                                       2. Order the French Republic to pay the costs.
2. Order the Kingdom of Spain to pay the costs .
                                                                       The pleas in law and main arguments are similar to those in
                                                                       Case C- 14/95 (4); the time-limits for transposition expired
Pleas in law and main arguments                                        on 1 January 1993 .
Notwithstanding the existence of Spanish legislation which             (!)  OJ No L 46, 19 . 2 . 1991 , p . 1 .
is in principle in accordance with the Eighth Directive, the           (2 ) OJ No L 340, 11 . 12. 1991 , p. 17.
Commission considers that it has been shown that the                   (3)  OJ No L 157, 10. 6 . 1992, p . 19 .
time-limit of six months for the refund of VAT to taxable              (4 ) See this edition of the OJ, p . 12 .
persons not established in the territory of the country is not
always respected by the relevant department of the Spanish