CELEX: C1996/145/07
Language: en
Date: 1996-05-18 00:00:00
Title: Reference for a preliminary ruling from the Bayerisches Landessozialgericht by order of that court of 2 February 1996 in the case of Maria Martinez Sala v. Freistaat Bayern (Case C-85/96)

18 . 5 . 96            EN                   Official Journal of the European Communities                                  No C 145/3
Reference for a preliminary ruling from the Hessisches                  ( 1 ) states criteria to identify private persons or
Finanzgericht by order of that court of 7 March 1996                          organizations having a legitimate interest in protecting
in the case of Quelle Schickedanz AG and Co. v.                               consumers, and
                 Oberfinanzdirektion Frankfurt/M.
                          ( Case C-80/96 )                              ( 2 ) allows such private persons or organizations to take
                                                                              action before the courts or before competent
                             ( 96/C 145/04 )                                  administrative bodies for a decision as to whether
                                                                              contractual terms drawn up for general use are
                                                                              unfair ?
Reference has been made to the Court of Justice of the
European Communities by an order of the Hessisches
Finanzgericht ( Hessen Finance Court) of 7 March 1 996,                 (') OJ No L 95 , 21 . 4 . 1993 , p . 29 .
which was received at the Court Registry on 18 March
 1996 , for a preliminary ruling in the case of Quelle
Schickedanz         AG   and       Co . v.   Oberfinanzdirektion
Frankfurt/M. on the following questions :
( a ) Where goods put up in sets for retail sale, comprising a          Reference for a preliminary ruling by the Corte Suprema di
      brassière and briefs, are classified individually pursuant        Cassazione — First Civil Division — by order of that court
      to the Annex to Commission Regulation ( EC )                      of 4 December 1995 in the case of Provincia Autonoma di
      No 1966/94 of 28 July 1994 concerning the                         Trento and Ufficio del Medico Provinciale di Trento against
      classification of certain goods in the combined                                    Dega di Depretto Gino Snc
      nomenclature ( OJ No L 198 , 30 . 7. 1994, p . 193 ), is                                    ( Case C-83/96 )
      that classification valid, inasmuch as it thereby conflicts
      with Rule 3 ( b ) of the general rules for the                                                ( 96/C 145/06 )
      interpretation of the combined nomenclature ?
                                                                        Reference has been made to the Court of Justice of the
( b ) If the answer to question ( a ) is in the negative :              European Communities by an order of the First Civil
                                                                        Division of the Corte Suprema di Cassazione of 4 December
      Is a set put up for retail sale, comprising a knitted             1995 , which was received at the Court Registry on
      brassière and knitted briefs, covered by code number              18 March 1996 , for a preliminary ruling in the case of
                                                                        Provincia Autonoma di Trento and Ufficio del Medico
      6212 10 00 because the brassière fails to be regarded, in
      accordance with Rule 3 ( b ) of the said general rules, as        Provinciale di Trento against Dega di Depretto Gino Snc on
      the component which gives the goods their essential               the following question :
      character ?
                                                                        Must Article 3 ( 1 ) ( 6 ) of Council Directive 79/112/EEC on
                                                                        the approximation of the laws of the Member States relating
                                                                        to the labelling, presentation and advertising of foodstuffs
                                                                        for sale to the ultimate consumer (*) be interpreted as
                                                                        meaning that the expression 'established within the
                                                                        Community' used in it, refers only to the seller or refers, in
                                                                        the absence of a seller established within the Community,
Reference for a preliminary ruling by the High Court of                 also to the manufacturer and/or packager ? Must that
Justice, Queen's Bench Division, by order of that court of              provision therefore be taken to mean that, in the absence of
28 February 1996, in the case of The Queen against                      a seller established in the Community, the manufacturer
Secretary of State for Trade and Industry, ex parte:                    and/or the packager must be established in the
         ( 1 ) Consumers' Association; (2 ) Which (?) Ltd               Community ?
                          ( Case C-82/96 )
                            ( 96/C 145/05 )                             (') OJ No L 33 , 8 . 2 . 1979 , p . 1 .
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice, Queen's Bench Division, of 28 February 1 996 ,
which was received at the Court Registry on 15 March
1996 , for a preliminary ruling in the case of The Queen                Reference for a preliminary ruling from the Bayerisches
against Secretary of State for Trade and Industry, ex parte:            Landessozialgericht by order of that court of 2 February
                                                                        1996 in the case of Maria Martinez Sala v. Freistaat
( 1 ) Consumers' Association; ( 2 ) Which (?) Ltd, on the
following questions :                                                                                   Bayern
                                                                                                  ( Case C-85 /96 )
                                                                                                    ( 96/C 145/07 )
Does Article 7 ( 2 ) of Council Directive 93/13/EEC of 5 April
1993 on unfair terms in consumer contracts (^ impose
obligations on Member States to ensure that national                    Reference has been made to the Court of Justice of the
law :                                                                   European Communities by an order of the Ninth Senate of
 ---pagebreak--- No C 145/4                EN                     Official Journal of the European Communities                                     18 . 5 . 96
the Landessozialgericht Bayern ( Higher Social Court of                         II, III, V, VI, VII, VIII, IX and XI of Council Regulation
Bavaria ) of 2 February 1996 , which was received at the                        ( EEC ) No 3030/93 on common rules for imports of
Court Registry on 20 March 1 996 , for a preliminary ruling                     certain textile products from third countries concerning
in the case of Maria Martinez Sala v. Freistaat Bayern on the                   cottage industry and folklore products ( 1 ),
following questions:
    I. Was a Spanish national living in Germany who was                     — order the Commission of the European Communities to
       employed, with various interruptions, until 1986                         pay the costs .
       and later, apart from a short period of employment
       in    1989 ,    received    social   assistance     under  the
       Bundessozialhilfegesetz ( Federal social welfare law,                Pleas in law and main arguments
       ( BSHG )) still in 1993 a worker within the meaning of
       Article 7 ( 2 ) of Regulation ( EEC ) No 1612/68 (') or an           — No reason for the retroactive nature of the amendments
       employed person within the meaning of Article 2 in
       conjunction with Article 1 of Regulation ( EEC )                         introduced by Regulation ( EC ) No 3053/95 : the
       No 1408/71 ( 2 )?                                                        reference in the 14th recital of the preamble to the
                                                                                Regulation to the arrangement with India , in particular
                                                                                to the removal of quantitative restrictions on the
  II. Is Erziehungsgeld ( childcare benefit) under the Gesetz                   importation of certain hand loom and folklore products
       iiber die Gewâhrung von Erziehungsgeld und                               originating in the Republic of India, contains nothing
       Erziehungsurlaub ( Law on the grant of childcare                         which justifies the retroactive effect of the amendment
       benefit and child-care leave, ( BErzGG )) a family benefit
                                                                                introduced into Annex VI to Regulation ( EEC )
       within the meaning of Article 4 ( 1 ) ( h ) of Regulation                No 3030/93 . It may not even be assumed that there is a
       ( EEC ) No 1408/71 , which Spanish nationals living in
                                                                                reason relating to the effectiveness of the arrangement
       Germany are entitled to in the same way as German
                                                                                inasmuch as that arrangement was not yet in force —
       nationals under Article 3 ( 1 ) of Regulation ( EEC )                    either on 1 January or on 30 December 1 995 (the date on
       No 1408/71 ?
                                                                                which the Regulation was adopted by the
                                                                                Commission ).
III . Is Erziehungsgeld payable under the BErzGG a social
       advantage within the meaning of Article 7 ( 2 ) of
       Regulation ( EEC ) No 1612/68 ?                                          It cannot be said that the retroactive liberalization of the
                                                                                importation of Indian hand loom products in the area of
IV. Is it compatible with the law of the European Union for                     clothing was foreseeable by the economic operators in
       the BErzGG to require possession of a formal residence                   the industry. Such liberalization breached the legitimate
       authorization for the payment of Erziehungsgeld to                       expectations of the operators and the principle of legal
       nationals of a Member State, even though they are                        certainty and is therefore unlawful . Moreover, the
       permitted to reside in Germany ?                                         decision of the Council concerning the conclusion of the
                                                                                agreements does not provide for their retroactive
C ) OJ , English Special Edition J 968 ( II ), p . 475 .                        application, thus expressly depriving of any legal basis
( 2 ) OJ , English Special Edition 1971 ( II ), p . 416 .                       the retroactivity and accelerated application of the
                                                                                arrangement with India under Article 2 of and Annex VI
                                                                                to Regulation ( EC ) No 3053/95 .
                                                                            — Infringement of Article 19 of Council Regulation ( EEC )
                                                                                No 3030/93 : the power to amend the Annexes to
Action brought on 21 March 1996 by the Portuguese                               Regulation ( EEC ) No 3030/93 is contingent upon
Republic against the Commission of the European                                 agreements with third countries having previously been
                              Communities                                       reached, which was not the case when the Regulation,
                             Case C-89/96
                                                                                which is partially contested in so far as concerns the
                                                                                Memorandum of Understanding with India , was
                             ( 96/C 145/08                                      adopted . The reference in the preamble to Regulation
                                                                                ( EEC ) No 3053/95 to an agreement which has not yet
An action against the Commission of the European                                been reached by the Community and the changes to the
Communities was brought before the Court of Justice of                          rules for imports of textile products originating in India
the European Communities on 21 March 1996 by the                                constitute a serious infringement by the Commission
Portuguese Republic, represented by Luis Fernandes and                          which is particularly open to criticism inasmuch as there
Maria Luisa Duarte, acting as agents, with an address for                       is no Council proposal for a decision to apply on a
service in Luxembourg at the Portuguese Embassy, 33 , Allée                     provisional basis the EC-India Agreement.
Scheffer .
                                                                            (») OJ No L 323 , 30 . 12 . 1995 , p . 1 .
The applicant claims that the Court should:
— annul Annex V of Commission Regulation ( EC )
      No 3053/95 of 20 December 1995 amending Annexes I,