CELEX: C1997/094/16
Language: en
Date: 1997-03-22 00:00:00
Title: Action brought on 24 January 1997 by the Commission of the European Communities against the French Republic (Case C-35/97)

No C 94/8                EN                  Official Journal of the European Communities                                       22 . 3 . 97
            agreement is of a type for which no precedents                         of a secure and reasonably-priced energy supply, to
            regarding whether it may be exempted are to be                         special control to prevent abuse with regard to
            found in either the practice of the Commission or                      pricing and terms of business ?
            the case-law of the Community judicature ?
                                                                                   If the provisions of German law on the energy
     ( b ) If, in the circumstances described in ( a ), the action                 industry cannot provide support, are there other
            for a declaration of failure to act is unsuccessful,                   considerations which justify regarding those supply
            are the national authorities nevertheless precluded                    undertakings as entrusted undertakings within the
            from applying Article 85 ( 1 ) of the EC Treaty                        meaning of Article 90 ( 2 ) of the EC Treaty and, if
            because the agreement is of a type whose                               so, what are they ?
            exemption has not as yet been dealt with at
            Community level ?                                                ( b ) If the electricity supply undertakings referred to
                                                                                   are entrusted undertakings within the meaning of
                                                                                   Article 90 ( 2 ) of the EC Treaty:
5 . If parts ( a ) and ( b ) of Question 4 are answered in the
     negative :                                                                    What are the criteria for interpretation of the
                                                                                   further requirements under Article 90 ( 2 ), that is
     Does a German municipal authority act as an                                   to say does the application of Article 85 ( 1 ) of the
     undertaking within the meaning of Article 85 ( 1 ) of                         EC Treaty to a concession agreement obstruct the
    the EC Treaty if it enters into a concession agreement                         performance, in law or in fact, of the particular
    with an electricity supply undertaking operating in                            tasks assigned to them and, if so, does the
     Germany, under which it grants to that undertaking,                           exemption from the rules on competition
    in return for a concession fee calculated on the basis                         contained in the EC Treaty affect the development
    of electricity sales in the area covered by the                                of trade to such an extent as is contrary to the
    concession, the exclusive right to use the public roads                        interests of the Community ?
    in the authority's area for the purposes of installation
    and operation of the mains necessary for the direct
    supply of electricity to end users and itself agrees not
    to undertake the public supply of electricity, or cause
    it to be undertaken, in the area covered by the
    concession ?                                                       Action brought on 24 January 1997 by the Commission of
                                                                          the European Communities against the French Republic
6 . If Question 5 is answered in the affirmative :                                                  Case C-35/97 )
                                                                                                     ( 97/C 94/ 16 )
    If the provision granting exclusive rights contained in
    a concession agreement with a local authority, as at               An action against the French Republic was brought before
    issue here, is found to be necessary in order to enable            the Court of Justice of the European Communities on
    the holder of the concession to undertake his supply               24 January 1997 by the Commission of the European
    operations, can that mean that there is no restriction             Communities, represented by Pieter Jan Kuyper and Pieter
    on competition within the meaning of Article 85 ( 1 ) of           Van Nuffel, acting as Agents, with an address for service
    the EC Treaty, or may that circumstance be taken into              in Luxembourg at the office of Carlos Gomez de la Cruz,
    account only when applying Article 90 (2 ) or                      Wagner Centre, Kirchberg.
    Article 85 ( 3 ) of the EC Treaty ?
                                                                       The Commission of the European Communities claims
7. If Article 85 ( 1 ) of the EC Treaty does apply:                    that the Court should :
    ( a ) Are the electricity supply undertakings operating in         1 . declare that, by excluding frontier workers residing in
           Germany which supply private and trade end users                 Belgium from qualifying for supplementary retirement
           undertakings entrusted with the operation of                     pension points after being placed in early retirement,
           services of general economic interest within the                 the French Republic has failed to fulfil its obligations
           meaning of Article 90 (2 ) of the EC Treaty, on the              under Article 48 ( 2 ) of the EC Treaty and Article 7 of
           grounds that, in the interests of the secure and                 Regulation ( EEC) No 1612/68 of 16 October 1968 on
           reasonably-priced supply of energy to consumers                  freedom       of   movement       for    workers within    the
           under the German Energiewirtschaftsgesetz ( Law                  Community ( J );
           on the Energy Industry 'EnWG'), they are subject
           to a series of special provisions, that is to say they      2 . order the French Republic to pay the costs .
           need authorization from the competent energy
           supervisory authority (paragraph 5 of the EnWG),            Pleas in law and main arguments adduced in support:
           are required under paragraph 6 of the EnWG to
           supply every person in the area covered by the              Infringement of Article 48 (2 ) of the EC Treaty and
          concession in accordance with published general              Article 7 of Regulation ( EEC ) No 1612/68 , Article 48 of
          conditions and price tariffs and, lastly, under              the EC Treaty and, in particular, Article 7 ( 1 ) of
          paragraph 103 ( 5 ) of the Gesetz gegen Wettbe­              Regulation ( EEC ) No 1612/68 prohibit discrimination
          werbsbeschrankungen ( Law Against Restriction on             against migrant workers in respect of conditions of
           Competition ), are subject, likewise in the interests       employment, in particular as regards remuneration and
 ---pagebreak--- 22. 3 . 97               I EN |                  Official Journal of the European Communities                                     No C 94/9
dismissal. The award of retirement pension points,                                authorities in the Member States from charging
including those awarded where the worker concerned has                            applicants administrative fees for processing their
been dismissed, constitutes a condition of employment                             applications for support payments, if those
agreed between the employer and the worker by virtue of                           administrative fees correspond to the rates which are
the fact that they are bound by collective agreements. The                        otherwise usual in national law and are so low that
fact that, following his dismissal, a frontier worker                             they are not capable of deterring applicants from
receives unemployment benefit in another Member State                             applying for support payments ?
pursuant to Article 71 of Regulation ( EEC) No 1408/
71 (2) cannot constitute, for the employer ( that is to say,                ( b) If Question ( a ) is answered in the affirmative :
the supplementary retirement pension institution to which
he is affiliated and which carries out his contractual
obligations in the matter), a reason for depriving his                            Does Article 15 ( 3 ) of the said Council Regulation
former employee of the contractual advantages agreed.                             infringe higher-ranking Community law, in particular
Although the discrimination in question results from                              the principle of cooperation in good faith under
collective agreements and not from legislation, it                                Article 5 of the EC Treaty, the principle of
nevertheless represents an infringement of Community law                          proportionality under the third paragraph of Article 3 b
by the defendant State, since that State has not only                             of the EC Treaty, and the principle of subsidiarity
accepted the existence of such discrimination within                              under the second paragraph of Article 3b of the EC
supplementary retirement pension schemes but has                                  Treaty ?
approved those agreements and made them generally
compulsory;, by Article L 731-5 of the French Social
Security Code, membership of a supplementary retirement
pension scheme is compulsory for all employed persons
subject to a compulsory old-age pension scheme . Although
the management of supplementary retirement pension                          Reference for a preliminary ruling from the Schleswig­
schemes is in principle left to the social partners, such                   Holsteinisches Verwaltungsgericht by order of that court
schemes are in fact based on agreements between the                         of 18 October 1996 in the case of Ernst-Detlef Ketelsen v.
social partners and the public authorities, which intervene                           Amt für Land- und Wasserwirtschaft Husum
actively in them, especially as regards the maintenance of
financial equilibrium.                                                                                 ( Case C-37/97)
                                                                                                         ( 97/C 94/18 )
The fact that the French supplementary retirement pension
schemes 'validate' periods of unemployment in France for
which benefit is paid to frontier workers who have lost                     Reference has been made to the Court of Justice of the
their job in another Member State does not eliminate or                     European Communities by an order of the First Chamber
make up for the discrimination applied, to their detriment,                 of the Schleswig-Holsteinisches Verwaltungsgericht
to frontier workers residing in another Member State .                      ( Schleswig-Holstein Administrative Court) of 18 October
                                                                            1996, which was received at the Court Registry on
(') Official Journal, English Special Edition 1968 ( II ), p. 475 .         27 January 1997, for a peliminary ruling in the case of
( 2 ) Official Journal , English Special Edition 1971 ( II ), p. 416 .      Ernst-Detlef Ketelsen v. Amt fur Land- und Wasserwirt­
                                                                            schaft Husum on the following questions :
                                                                            ( a ) Is Article 30a of Council Regulation ( EEC ) No 2066/
                                                                                  92 of 30 June 1992 amending Regulation ( EEC )
Reference for a preliminary ruling from the Schleswig­                            No 805/68 on the common organization of the market
Holsteinisches Verwaltungsgericht by order of that court                          in beef and veal and repealing Regulation ( EEC )
of 18 October 1996 in the case of Hilmar Kellinghusen v.                          No 468/87 laying down general rules applying to the
             Amt fur Land- und Wasserwirtschaft Kiel                              special premium for beef producers and Regulation
                             ( Case C-36/97)
                                                                                  ( EEC ) No 1357/80 introducing a system of premiums
                                                                                  for maintaining suckler cows ( OJ No L 215 , 30 . 7.
                               ( 97/C 94/17)                                      1992, p. 49 ) to be interpreted as prohibiting the
                                                                                  authorities in the Member States from charging
Reference has been made to the Court of Justice of                                applicants administrative fees for processing their
the European Communities by an order of the First                                 applications for aid, if those administrative fees
Chamber of the Schleswig-Holsteinisches Verwaltungsge­                            correspond to the rates which are otherwise usual in
richt ( Schleswig-Holstein Administrative Court) of                               national law and are so low that they are not capable
18 October 1996, which was received at the Court                                  of deterring applicants from applying for aid ?
Registry on 27 January 1997, for a preliminary ruling in
the case of Hilmar Kellinghusen v. Amt fur Land- und                        ( b ) If Question ( a ) is answered in the affirmative :
Wasserwirtschaft Kiel on the following questions :
( a ) Is Article 15 ( 3 ) of Council Regulation ( EEC ) No 1765/                  Does Article 30a of the said Council Regulation
       92 of 30 June 1992 establishing a support system for                       infringe higher-ranking Community law, in particular
       producers of certain arable crops ( OJ No L 181 , 1 . 7.                   the principle of cooperation in good faith under
       1992, p. 12 ) to be interpreted as prohibiting the                         Article 5 of the EC Treaty, the principle of