CELEX: C1998/137/19
Language: en
Date: 1998-05-02 00:00:00
Title: References for a preliminary ruling by the Arbeitsgericht, Wiesbaden, by orders of that court of 10, 13, 16 and 17 February 1998 in the cases of Finalarte Sociedade de Construçao Civil, Lda against Urlaubs- und Lohnausgleichskasse der Bauwirtschaft (C-49/98) and Urlaubs- und Lohnausgleichskasse der Bauwirtschaft against 1. Amilcar Oliveira Rocha (C-50/98), 2. Works in the World Srl (C-51/98), 3. Tudor Stone Ltd (C-52/98), 4. Tecnamb-Tecnologia do Ambiente, Lda (C-53/98) and 5. Turiprata Construçoes Civil, Lda (C-54/98) (Cases C-49/98, C-50/98, C-51/98, C-52/98, C-53/98 and C-54/98)

2.5.98                EN                 Official Journal of the European Communities                                  C 137/9
    (b) Is it permissible for an application for an extension       6. Where the repayment criteria laid down in
        to relate not to declarations to be listed                      Article 900(1)(o) of the implementing Regulation are
        individually but instead globally to all declarations           fulfilled, can it ordinarily be assumed that the person
        to be made within a given period (in this case,                 concerned has not acted with any fraudulent intent or
        several months), where reference is made, by way                in a manner which is obviously negligent?
        of justification, to special problems existing during
        that period in the applicant's business (for                7. If question 6 and/or question 4 are to be answered in
        example, the fact that employees have suddenly                  the negative:
        fallen ill or have been absent on leave, the
                                                                        Should the term obvious negligence' in the second
        induction of new employees, problems with the
                                                                        indent of Article 239(1) of the Customs Code be
        application of a data-processing system developed
                                                                        defined according to objective and/or subjective
        for the purposes of carrying out customs
                                                                        criteria, and does it have the same meaning as the
        formalities or, in cases involving outward
                                                                        term obvious negligence' in the second indent of
        processing, the excessive work involved in the
                                                                        Article 859 of the implementing Regulation and the
        preparation of attributions which should in fact
                                                                        term manifest negligence' in Article 212a? Can no
        have been prepared by the customs authorities),
                                                                        obvious negligence' be said to exist within the
        without obvious negligence arising within the
                                                                        meaning of Article 239 of the Customs Code where
        meaning of the second indent of Article 859 on the
                                                                        customs debts on importation have been incurred
        implementing Regulation?
                                                                        pursuant to Article 204(1)(a) because, for reasons such
                                                                        as those given by way of example in question 2(b),
3. If question 1 is to be answered in the negative:
                                                                        there has been non-compliance over a period of many
                                                                        months with the time limit laid down in Article 49(1)
    Must it be assumed that the numerous instances of                   of the Customs Code and no circumstances justifying
    failure to comply in time with the obligation to assign             extensions of time existed, with the result that there
    to goods presented to customs a customs-approved                    was also obvious negligence within the meaning of the
    treatment or use are to be considered to have no                   second indent of Article 859 of the implementing
    significant effect on the correct operation of the                  Regulation?
    temporary storage or customs procedure in question'
    where such treatment or use is assigned to the goods            (1) OJ L 253, 11.10.1993, p. 1.
    after the time limit has expired and an extension of            (2) OJ L 302, 19.10.1992, p. 1.
    the time allowed for such assignment would not have             (3) OJ L 346, 31.12.1994, p. 1.
    been justified pursuant to Article 49(2) of the Customs
    Code?
4. If question 2(b) or question 3 is to be answered in the
    negative:
                                                                    References for a preliminary ruling by the Arbeitsgericht,
                                                                    Wiesbaden, by orders of that court of 10, 13, 16 and
    Is Article 900(1)(o) of the implementing Regulation, as
                                                                    17 February 1998 in the cases of Finalarte Sociedade de
    inserted by Article 1(29) of Commission Regulation
                                                                    ConstrucËao Civil, Lda against Urlaubs- und Lohnaus-
    (EC) No 3254/94 (3), concerning eligibility for
                                                                    gleichskasse der Bauwirtschaft (C-49/98) and Urlaubs-
    preferential rates or Community treatment, also
                                                                    und Lohnausgleichskasse der Bauwirtschaft against
    applicable to the grant of other forms of preferential
                                                                    1. Amilcar Oliveira Rocha (C-50/98), 2. Works in the
    tariff treatment?
                                                                    World Srl (C-51/98), 3. Tudor Stone Ltd (C-52/98),
                                                                    4. Tecnamb-Tecnologia do Ambiente, Lda (C-53/98) and
5. If question 4 is to be answered in the negative:                        5. Turiprata ConstrucËoes Civil, Lda (C-54/98)
                                                                    (Cases C-49/98, C-50/98, C-51/98, C-52/98, C-53/98 and
    Where a claim is made for repayment, are the customs
                                                                                               C-54/98)
    authorities and courts required to examine of their
    own motion whether all relevant criteria for                                            (98/C 137/19)
    repayment are fulfilled, even in the event that the
    claimant expressly bases his claim for repayment on             Reference has been made to the Court of Justice of the
    one legal criterion only, thus rendering it necessary, in       European Communities by orders of the First, Fifth,
    circumstances such as those of the present case, to             Seventh and Eighth Chambers of the Arbeitsgericht
    examine whether the conditions laid down in the                 (Labour Court), Wiesbaden, of 10, 13, 16 and 17 February
    second indent of Article 239(1) of the Customs Code             1998, received at the Court Registry on 24 February
    in conjunction with the first sentence of Article 905(1)        1998, for a preliminary ruling in the cases of Finalarte
    of the implementing Regulation are fulfilled with               Sociedade de ConstrucËao Civil, Lda against Urlaubs- und
    regard to declarations for entry into free circulation in       Lohnausgleichskasse der Bauwirtschaft (Holiday and Wage
    which valid movement certificates on form EUR.1 or              Equalisation Fund of the Construction Industry) (C-49/98)
    certificates of origin on form A have been produced,            and Urlaubs- und Lohnausgleichskasse der Bauwirtschaft
    and where there exists the possibility of total or              against 1. Amilcar Oliveira Rocha (C-50/98), 2. Works in
    partial exemption from import duties of goods which             the World Srl (C-51/98), 3. Tudor Stone Ltd (C-52/98), 4.
    have been reimported following outward processing               Tecnamb-Tecnologia do Ambiente, Lda (C-53/98) and 5.
    (differential customs clearance) or goods returned              Turiprata ConstrucËoes Civil, Lda (C-54/98) on the
    following repair?                                               following questions.
 ---pagebreak--- C 137/10             EN                Official Journal of the European Communities                                      2.5.98
1. Are Articles 48, 59 and 60 of the EC Treaty to be                   provision of services (2) to be interpreted as in any
   interpreted as infringed by a provision of national law,            event, having regard to the correct interpretation of
   the first sentence of paragraph 1(3) of the Arbeitneh-              Articles 48, 59 and 60 of the EC Treaty, neither
   merentsendegesetz (Law on the Posting of Workers),                  requiring nor permitting the rules at issue in
   which extends the application of provisions of                      questions 1, 2 and 3?
   collective agreements which have been declared
   generally binding concerning the collection of                 (1) OJ L 307, 13.12.1993, p. 18.
   contributions and the grant of benefits in connection          (2) OJ L 18, 21.1.1997, p. 1.
   with workers' holiday entitlements by joint bodies of
   parties to collective agreements, and thus the
   provisions of those agreements concerning the scheme
   to be complied with in that regard, to employers
   resident abroad and their workers who have been
   posted to the area within which those collective               Reference for a preliminary ruling by the Hùjesteret by
   agreements apply?                                              order of 18 February 1998 in the case of Skatteministeriet
                                                                                        v. Bent Vestergaard
2. Are Articles 48, 59 and 60 of the EC Treaty to be                                       (Case C-55/98)
   interpreted as infringed by the second sentence of                                       (98/C 137/20)
   paragraph 1(1) and the first sentence of paragraph 1(3)
   of the Arbeitnehmerentsendegesetz which result in the
   application of provisions of collective agreements             Reference has been made to the Court of Justice of the
   declared to be generally binding which:                        European Communities by order of 18 February 1998
                                                                  from the Hùjesteret (Danish Supreme Court), which was
   (a) provide for a length of leave which exceeds the            received at the Court Registry on 24 February 1998, for a
       minimum length of annual leave laid down in                preliminary ruling in the case of Skatteministeriet
       Council Directive 93/104/EC of 23 November                 (Ministry of Fiscal Affairs) v. Bent Vestergaard on the
       1993 (1) concerning certain aspects of the                 following questions.
       organisation of working time, and/or
                                                                  1. Is it in accordance with Articles 6 and 59 of the EC
   (b) allow employers resident in Germany to claim the                Treaty for Danish case-law (see the judgment of the
       reimbursement of expenditure on holiday pay and                 Hùjesteret of 19 October 1994, reproduced in
       holiday allowances from joint bodies of the parties             Ugeskrift for Retsvñsen 1994, p. 970) to apply a
       to the collective agreements whereas, in the case of            presumption that, in cases in which a course is held in
       employers resident abroad, they do not provide for              an ordinary tourist resort outside Denmark and the
       such a claim but instead for a direct claim by the              course location cannot, as such, be justified on
       posted workers against the joint bodies of the                  professional grounds, the course involves such a
       parties to the collective agreements, and/or                    significant tourism element that the costs of the course
                                                                       cannot be treated as constituting deductible operating
   (c) in connection with the social fund scheme to be                 costs?
       complied with under those collective agreements,
       impose on employers resident abroad obligations            2. If the answer is no: can the national legal position in
       to provide information to the joint bodies of the               the area of taxation be justified by reference to the
       parties to the collective agreements whereby the                case-law of the Court of Justice, in particular Case
       amount of information to be given exceeds the                   C-204/90 Bachmann v. Belgium (1) and Case C-250/95
       amount required from employers resident in                      Futura Participations and Singer v. Administration des
       Germany?                                                        Contributions (2)?
3. Are Articles 48, 59 and 60 of the EC Treaty to be              (1) Judgment of 28.1.1992, [1992] ECR I-249
   interpreted as infringed by paragraph 1(4) of the              (2) Judgment of 15.5.1997, [1997] ECR I-2471.
   Arbeitnehmerentsendegesetz under which, for the
   purposes of classifying businesses as covered by a
   collective agreement which has been declared generally
   binding and which, under the first sentence of
   paragraph 1(3) of that Law, also applies to employers
   resident abroad and their workers who have been                Appeal brought on 26 February 1998 by Associación
   posted to the area within which that collective                Telefónica de Mutualistas (ATM) against the judgment
   agreement applies, all workers posted to Germany, but          delivered on 18 December 1997 by the First Chamber,
   only those workers, are treated as a business, while a         Extended Composition, of the Court of First Instance of
   different definition of a business applies to employers        the European Communities in Case T-178/94 between
   resident in Germany which in certain cases results in          Associación Telefónica de Mutualistas (ATM) and
   different businesses falling within the field of                        Commission of the European Communities
   application of the generally binding collective                                       (Case C-57/98 P)
   agreement?
                                                                                            (98/C 137/21)
4. Is Article 3(1)(b) of European Parliament and Council
   Directive 96/71/EC of 16 December 1996 concerning              An appeal against the judgment delivered on 18 December
   the posting of workers in the framework of the                 1997 by the First Chamber, Extended Composition, of the