CELEX: C1999/204/53
Language: en
Date: 1999-07-17 00:00:00
Title: Case C-173/99: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division (Crown Office), by order of that court of 14 April 1999, in the case of The Queen against Secretary of State for Trade and Industry, Ex parte: Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU)

C 204/28               EN                     Official Journal of the European Communities                                       17.7.1999
    protection of the national construction industry and the             Reference for a preliminary ruling from the Korkein
    reduction in national unemployment for the purpose of                Oikeus by order of that court of 27 April 1999 in the case
    preventing social tension, consistent with Community law?            of Oy Liikenne Ab v Pekka Liskojärvi and Pentti Juntunen
2. Does it amount to an unjustified restriction on the freedom
    to provide services under the EC Treaty if a domestic                                         (Case C-172/99)
    employer can pay less than the minimum wage laid down
    in a collective agreement declared to be generally binding                                    (1999/C 204/52)
    by concluding a collective agreement specific to one
    undertaking (and enjoying precedence), whereas this is
    — at least in fact — not possible for a non-German EC                Reference has been made to the Court of Justice of the
    employer in the case where he proposes to post workers               European Communities by an order of the Korkein Oikeus
    to the Federal Republic of Germany?                                  (Supreme Court), Finland, of 27 April 1999, which was
                                                                         received at the Court Registry on 7 May 1999, for a preliminary
                                                                         ruling in the case of Oy Liikenne Ab v Pekka Liskojärvi and
                                                                         Pentti Juntunen on the following question:
                                                                         Is a situation in which the operation of bus routes passes from
                                                                         one bus undertaking to another as a consequence of a
                                                                         tender procedure under Directive 92/50/EEC on public service
Action brought on 4 May 1999 by the Commission of the                    contracts (1) to be regarded as a transfer of a business for the
   European Communities against the Kingdom of Spain                     purposes of Article 1(1) of Directive 77/187/EEC (2)?
                          (Case C-168/99)
                                                                         (1) Council Directive 92/50/EEC of 18 June 1992 relating to the
                                                                             coordination of procedures for the award of public service
                          (1999/C 204/51)                                    contracts (OJ L 209 of 24.7.1992, p. 1).
                                                                         (2) Council Directive 77/187/EEC of 14 February 1977 on the
An action against the Kingdom of Spain was brought before                    approximation of the laws of the Member States relating to the
the Court of Justice of the European Communities on 4 May                    safeguarding of employees’ rights in the event of transfers of
1999 by the Commission of the European Communities,                          undertakings, businesses or arts of businesses (OJ L 61 of
                                                                             5.3.1977, p. 26).
represented by Juan Guerra Fernández, of its Legal Service,
acting as Agent, with an address for service in Luxembourg at
the office of Carlos Gómez de la Cruz, of its Legal Service,
Wagner Centre, Kirchberg.
The applicant claims that the Court should:
1. Declare that, by failing to adopt and bring into force or
    communicate all the laws, regulations and administrative             Reference for a preliminary ruling by the High Court of
    provisions necessary to comply with Council Directive                Justice (England & Wales), Queen’s Bench Division
    96/43/EC of 26 June 1996 amending and consolidating                  (Crown Office), by order of that court of 14 April 1999,
    Directive 85/73/EEC in order to ensure financing of                  in the case of The Queen against Secretary of State for
    veterinary inspections and controls on live animals and              Trade and Industry, Ex parte: Broadcasting, Entertain-
    certain animal products and amending Directives                          ment, Cinematographic and Theatre Union (BECTU)
    90/675/EEC and 91/496/EEC (1), the Kingdom of Spain
    has failed to fulfil its obligations under the EC Treaty; and
                                                                                                  (Case C-173/99)
2. Order the defendant to pay the costs.
                                                                                                  (1999/C 204/53)
Pleas in law and main arguments
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by an order of the High Court of
The mandatory nature of the provisions ot the third paragraph            Justice (England & Wales), Queen’s Bench Division (Crown
of Article 249 and the first paragraph of Article l0 of the EC           Office), of 14 April 1999, which was received at the Court
Treaty requires Member States to adopt the measures necessary            Registry on 10 May 1999, for a preliminary ruling in the case
to transpose directives addressed to them into their domestic            of The Queen against Secretary of State for Trade and Industry,
law before the expiry of the period prescribed for doing so.             Ex parte: Broadcasting, Entertainment, Cinematographic and
That period, which is laid down in Article 4 of the directive,           Theatre Union (BECTU), on the following questions:
expired on 1 July 1997 without Spain having brought into
force the necessary provisions.
                                                                         1. Is the expression ‘in accordance with the conditions for
                                                                              entitlement to, and granting of, such leave laid down by
(1) OJ 1996 L 162, p. 1.                                                      national legislation and/or practice’ in Article 7 of Council
                                                                              Directive 93/104/EC of 23 November 1993 concerning
                                                                              certain aspects of the organization of working time (OJ
                                                                              1993 L 307, p. 18: ‘the Working Time Directive’) to be
 ---pagebreak--- 17.7.1999              EN                      Official Journal of the European Communities                                         C 204/29
     interpreted as permitting a Member State to enact national           Reference for a preliminary ruling from the Tribunal
     legislation under which:                                             Administratif (Administrative Court), Nantes (First
                                                                          Chamber), France, by judgment of that court of 11 May
     (a) a worker does not begin to accrue rights to the paid             1999 in the case of Ampafrance SA v Directeur des
         annual leave specified in Article 7 (or to derive any                          Services Fiscaux de Maine-et-Loire
         benefits consequent thereon) until he has completed
         a qualifying period of employment with the same                                            (Case C-177/99)
         employer; but
                                                                                                    (1999/C 204/55)
     (b) once that qualifying period has been completed, his
         employment during the qualifying period is taken into
         account for the purposes of computing his leave                  Reference has been made to the Court of Justice of the
         entitlement?                                                     European Communities by a judgment of the Tribunal Admi-
                                                                          nistratif (Administrative Court), Nantes (First Chamber),
                                                                          France, of 11 May 1999, which was received at the Court
2. If the answer to question 1 is ‘yes’, what are the factors             Registry on 17 April 1999, for a preliminary ruling in the
     that the national court should take into account in order            case of Ampafrance SA v Directeur des Services Fiscaux de
     to determine whether a particular qualifying period of               Maine-et-Loire, on the following question:
     employment with the same employer is lawful and pro-
     portionate? In particular, is it legitimate for a Member State
     to take into account the cost for employers of conferring            ‘Are the provisions of the Decision of 28 July 1989 of the
     the rights on those workers who are employed for less                Council of the European Communities (1) authorising the
     than the qualifying period?                                          French Government to derogate from the limit imposed by the
                                                                          Sixth Council Directive 77/388/EEC of 17 May 1977 and
                                                                          to extend to third parties exclusions of expenditure on
                                                                          accommodation, restaurants, hospitality and entertainment
                                                                          from the right to deduct tax compatible, first, with the
                                                                          objectives of the Sixth Directive and in particular Article 27
                                                                          thereof which stases that “the Council, acting unanimously on
                                                                          a proposal from the Commission, may authorise any Member
                                                                          State to introduce special measures for derogation from the
Reference for a preliminary ruling by the Conseil de                      provisions of this directive, in order to simplify the procedure
Prud’hommes, Metz (Miscellaneous Activities Chamber),                     for charging the tax or to prevent certain types of tax
by judgment of that tribunal of 14 April 1999 in the case                 evasion or avoidance”, and, second, with the principle of
of Didier Mayeur aginst APIM Association Promotion de                     proportionality between the tax objective pursued and the
                     l’Information Messine                                means employed?’
                         (Case C-175/99)                                  (1) Council Decision 89/487/EEC of 28 July 1989 authorising the
                                                                              French Republic to apply a measure derogating from the second
                                                                              subparagraph of Article 17(6) of the Sixth Directive 77/388/EEC
                         (1999/C 204/54)                                      on the harmonisation of the laws of the Member States relating
                                                                              to turnover taxes (OJ L 239, p. 21).
Reference has been made to the Court of Justice of the
European Communities by judgment of the Conseil de
Prud’hommes, Metz (Miscellaneous Activities Chamber) of
14 April 1999, received at the Court Registry on 11 May
1999, for a preliminary ruling in the case of Didier Mayeur
against APIM Association Promotion de l’Information Messine.
The Labour Tribunal, Metz, Miscellaneous Activities Chamber,              Reference for a preliminary ruling from the Bezirksge-
requests the Court of Justice to give a ruling on the following           richt Bregenz by order of that court of 29 December 1998
question:                                                                  in the land registration case of Doris Salzmann née Greif
‘Is Directive 77/187/EEC of 14 February 1977 on the approxi-                                        (Case C-178/99)
mation of the laws of the Member States relating to the
safeguarding of employees’ rights in the event of transfers of                                      (1999/C 204/56)
undertakings, businesses or parts of businesses (1) applicable
where the activity of a legal person governed by private law is           Reference has been made to the Court of Justice of the
transferred to a legal person governed by public law? Must                European Communities by an order of the Bezirksgericht
application of that directive be excluded where the activity is           Bregenz (District Court, Bregenz), Austria, of 29 December
transferred to a public service of an administrative nature?’             1998, which was received at the Court Registry on 14 May
                                                                          1999, for a preliminary ruling in the land registration case of
                                                                          Doris Salzmann née Greif on the following questions:
(1) OJ L 61 of 5.3.1977, p. 26.
                                                                          1. May nationals of a Member State of the European Union
                                                                               rely on free movement of capital even if a capital trans-
                                                                               action has no transnational element?