CELEX: C2002/118/30
Language: en
Date: 2002-05-18 00:00:00
Title: Case C-92/02: Reference for a preliminary ruling by De Arbeidsrechtbank van het Arrondissement Tongeren by order of that Court of 11 March 2002 in the case of Nina Kristiansen against Rĳksdienst voor Arbeidsvoorziening

C 118/18               EN                   Official Journal of the European Communities                                     18.5.2002
Reference for a preliminary ruling by the Verwaltungsger-              The Commission claims that the Court should:
icht Sigmaringen by order of that Court of 10 December
2001 in the case of Ms Erika Steinicke against Bundesan-               —     declare that, by failing to adopt and to communicate
                          stalt für Arbeit                                   to the Commission within the time-limit laid down
                                                                             (16 September 1999) the plans, outlines and summaries
                                                                             required under Articles 11 and 4(1) of Council Directive
                          (Case C-77/02)                                     96/59/EC (1) of 16 September 1996 on the disposal of
                                                                             polychlorinated biphenyls and polychlorinated ter-
                                                                             phenyls (PCB/PCT), the Hellenic Republic has failed to
                         (2002/C 118/28)                                     fulfil its obligations under the EC Treaty;
                                                                       —     order the Hellenic Republic to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgericht                Pleas in law and main arguments
Sigmaringen (Administrative Court, Sigmaringen) of
10 December 2001, received at the Court Registry on 7 March
2002, for a preliminary ruling in the case of Ms Erika Steinicke       In accordance with the third paragraph of Article 249 EC,
against Bundesanstalt für Arbeit on the following question:            directives are binding, as to the result to be achieved, upon
                                                                       each Member State to which they are addressed.
Do Articles 141 of the EC Treaty, Directives 75/117/EEC (1),
76/207/EEC (2) and/or Directive 97/81/EC (3) preclude the rule         Under the first paragraph of Article 10 EC, Member States are
in Paragraph 72(b)(1)(1)(2) of the Bundesbeamtengesetz (Law            to take all appropriate measures, whether general or particular,
on public servants), in the 3 March 1999 version that was in           to ensure fulfilment of the obligations arising out of the Treaty
force until 30 June 2000, to the effect that part-time status on       or resulting from action taken by the institutions of the
grounds of old age may be accorded only to public servants             Community.
who have worked full-time for a total of at least three of the
five years preceding their conversion to such part-time status,
if significantly more women than men work part-time, and               It is not disputed by the Hellenic Republic that it must adopt
are consequently excluded under that provision from being              measures to comply with the abovementioned directive.
accorded part-time status on grounds of old age?
                                                                       The Commission records that until now the Hellenic Republic
                                                                       has not adopted the appropriate measures for the full incorpor-
(1) OJ L 45, p. 19.                                                    ation of the directive at issue into Greek law.
(2) OJ L 39, p. 40.
(3) OJ 1998 L 14, p. 9.
                                                                       (1) OJ L 243, 24.9.1996, p. 31.
                                                                       Reference for a preliminary ruling by De Arbeidsrecht-
                                                                       bank van het Arrondissement Tongeren by order of that
Action brought on 12 March 2002 by the Commission of                   Court of 11 March 2002 in the case of Nina Kristiansen
the European Communities against the Hellenic Republic                         against Rijksdienst voor Arbeidsvoorziening
                                                                                                  (Case C-92/02)
                          (Case C-83/02)
                                                                                                 (2002/C 118/30)
                         (2002/C 118/29)
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of De Arbeidsrechtbank
An action against the Hellenic Republic was brought before             van het Arrondissement Tongeren (Tongeren District Labour
the Court of Justice of the European Communities on 12 March           Court) of 11 March 2002, received at the Court Registry on
2002 by the Commission of the European Communities,                    15 March 2002, for a preliminary ruling in the case of Nina
represented by Hans Stovlbaek and Minas Konstantinidis, Legal          Kristiansen against Rijksdienst voor Arbeidsvoorziening on
Advisers.                                                              the following questions:
 ---pagebreak--- 18.5.2002              EN                    Official Journal of the European Communities                                      C 118/19
1.    In respect of temporary officials of the EEC who, after the       The applicant claims that the Court should:
      end of their period of service with the EEC reside in
      Belgium and in respect of whom no contributions were
      deducted in favour of the social security system and who          —     declare that, by not adopting within the time-limit
      are entitled to unemployment benefits paid by the EEC,                  prescribed all measures necessary for the recovery from
      do the provisions of Regulation No 1408/71 (1) preclude                 the recipients of aid granted unlawfully which is incom-
      national legislation from being fully applied to them,                  patible with the common market pursuant to Com-
      including the national rule against the overlapping of                  mission Decision 2000/128/EC (1) of 11 May 1999
      benefits under which, in accordance with the conditions                 concerning aid granted by Italy to promote employment
      governing the award of unemployment benefit the                         (notified on 4 June 1999 under document number
      employee must be without work and without salary, the                   C(1999) 1364), and therefore by not notifying the
      latter terms being deemed to include in particular:                     Commission of such measures, the Italian Republic has
      remuneration in respect of termination of employment                    failed to fulfil its obligations under Articles 3 and 4 of
      or any compensation payable to the employee in respect                  that decision and under the EC Treaty;
      of termination of an employment relationship, with the
      exception of compensation for non-material damage?                —     order the defendant to pay the costs.
2.    Does it run counter to Regulation of the Council
      No 1612/68 (2) (Article 7(4) of Title II) which provides
      that uniformity in social-security matters must be pursued
      and that there may be no discrimination that (in the              Pleas in law and main arguments
      applicant’s view) there is inequality in the social-security
      status of post-doctoral assistants within the EEA, that in
      various Member States of the EEA a post-doctoral assist-          The Commission decision requires Italy to adopt ‘all necessary
      ant is deemed to carry on an occupational activity, albeit        measures to recover from the recipients the aid which does
      not subject to social security, and in Belgium a post-            not satisfy the conditions of Articles 1 and 2 and has already
      doctoral assistant (in the applicant’s view unjustly) is          been unlawfully paid.’ It must also notify the Commission,
      deemed to be a trainee (stagiaire) and a post-doctoral            within two months of the date of notification of that decision,
      fellow must arrange for his own social-security cover             ‘of the measures it has taken to comply herewith.’
      under the Belgian national system although that is not
      possible on a voluntary basis (at any rate in regard to
      unemployment assurance)?
                                                                        It must be concluded that upon the expiry of that time-limit
                                                                        the Italian Republic had not yet informed the Commission of
                                                                        the measures taken to recover the aid unlawfully paid.
(1) OJ 1971, L 149, p. 2.
(2) OJ 1968, L 257, p. 2.
                                                                        The only defence a Member State may plead to an action for
                                                                        failure to comply with a decision imposing an obligation to
                                                                        recover aid is that implementation is absolutely impossible.
                                                                        That condition is not satisfied so long as the defendant
                                                                        government confines itself to informing the Commission of
                                                                        legal, political or practical obstacles to the implementation of
                                                                        the decision without taking any steps to ensure that the
                                                                        undertakings concerned pay back the aid, and without suggest-
                                                                        ing alternative means of implementing the decision so as to
Action brought on 15 March 2002 by the Commission of                    overcome those obstacles.
  the European Communities against the Italian Republic
                                                                        The Italian authorities have never claimed that implementation
                          (Case C-99/02)                                was absolutely impossible, nor have they ever officially
                                                                        requested an extension of time for the recovery or a suspension
                                                                        of execution of the decision, and nor have they suggested
                         (2002/C 118/31)                                alternative ways of applying the decision which would have
                                                                        enabled them to overcome the obstacles they faced.
                                                                        (1) OJ L 42 of 15.2.2000, p. 1.
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 15 March
2002 by the Commission of the European Communities,
represented by Vittorio Di Bucci, acting as Agent.