CELEX: C2003/158/21
Language: en
Date: 2003-07-05 00:00:00
Title: Case C-191/03: Reference for a preliminary ruling by the Labour Court, Dublin, by decision of that court dated 14 April 2003, in the case of North Western Health Board against Margaret McKenna

C 158/12                EN                          Official Journal of the European Union                                          5.7.2003
Pleas in law and main arguments                                                   The requirement for a fee for the issue of this proof is,
                                                                                  moreover, an extra financial burden that is incompatible
                                                                                  with Article 49 of the EC Treaty.
—     First and second objection: compulsory permits for firms
      and their staff                                                       —     Fourth objection: recognition of professional qualifi-
                                                                                  cations
      The requirement that a private security firm wishing to
                                                                                  Under Netherlands legislation, it is a requirement that staff
      provide services in the Netherlands must have a permit is
                                                                                  members of a security firm have a diploma (Algemeen
      equivalent to a restriction on the freedom to provide
                                                                                  Beveiligingsmedewerker — diploma) from a Netherlands
      services by the undertakings concerned. Such a restriction
                                                                                  organisation. Furthermore, installers of alarms are
      is justified solely where there are overriding reasons of
                                                                                  required to have certain qualifications, but no account is
      public interest, that interest cannot be guaranteed in the
                                                                                  taken of diplomas acquired in another Member State.
      Member State in which the undertaking is established and
                                                                                  Nowhere is there express reference to a procedure for the
      the national measure does not exceed what is necessary
                                                                                  recognition of diplomas and qualifications acquired in
      to achieve the objective sought.
                                                                                  another Member State for the exercise of the professions
                                                                                  in question. The legislation in question does not appear
      However, as regards, first, the appropriateness of the                      to have a provision referring to the machinery for the
      measure to achieve the general interest objective, said to                  recognition of professional qualifications, such as those
      be the protection of customers for the services, there is                   included in the relevant national legislation. Such a
      no evidence from which to conclude that the obligation                      situation is incompatible with existing Community legis-
      for a permit as required in the Netherlands constitutes an                  lation, namely Directive 89/48/EEC and Directive 92/51/
      appropriate measure.                                                        EEC which together form a general framework for the
                                                                                  recognition of professional qualifications obtained in
                                                                                  other Member States.
      Moreover, the Netherlands legislation does not take into
      account the requirements which the foreign provider of
      services must already satisfy in his Member State of
                                                                            (1 ) OJ 1989 L 19, p. 16.
      establishment, in particular where he already has a permit
                                                                            (2 ) OJ 1992 L 209, p. 25.
      to carry out his activities in that State.
      Furthermore, the requirement for a permit is combined
      with costs for the foreign undertaking. This is an extra
      financial burden for foreign undertakings which are
      already required in their country of origin to apply for a
      permit and to pay such costs. Those charges in such
      circumstances also appear to be incompatible with
      Article 49 of the EC Treaty.
                                                                            Reference for a preliminary ruling by the Labour Court,
                                                                            Dublin, by decision of that court dated 14 April 2003, in
      Just like the obligation that an undertaking have a permit,           the case of North Western Health Board against Margaret
      the requirement that managers must also obtain specific
                                                                                                         McKenna
      approval is not an appropriate measure which can be
      justified by one of the reasons on which the Netherlands
      authorities rely. In any case, as the firm itself must already
                                                                                                      (Case C-191/03)
      satisfy an obligation to have a permit in the Netherlands,
      the requirement for approval of managers is a dual
      measure which is thus certainly not necessary. The
                                                                                                      (2003/C 158/21)
      separate approval of managers therefore infringes the
      principle of proportionality and, thus, Article 49 of the
      EC Treaty.
                                                                            Reference has been made to the Court of Justice of the
—     Third objection: proof of identity                                    European Communities by a decision of the Labour Court,
                                                                            Dublin, dated 14 April 2003, which was received at the Court
                                                                            Registry on 12 May 2003, for a preliminary ruling in the case
      Foreign undertakings are obliged to ensure that staff                 of North Western Health Board and Margaret McKenna on the
      seconded to the Netherlands from outside their country
                                                                            following questions:
      of establishment are in possession of a proof of identity
      issued by the Netherlands authorities. That applies also
      for the temporary provision of services. As the seconded              1.    Does the operation of a sick leave scheme which treats
      staff must already, in accordance with Community law,                       employees suffering from pregnancy related illnesses and
      possess an identity card or passport, it is disproportionate                pathological illness in an identical fashion come within
      to require a proof of identity.                                             the scope of Directive 76/207 ( 1)?
 ---pagebreak--- 5.7.2003                 EN                          Official Journal of the European Union                                           C 158/13
2.     If the answer to question 1 is in the affirmative, is it              was brought before the Court of Justice of the European
       contrary to Directive 76/207 for an employer to offset                Communities on 12 May 2003 by Alcon Inc., formerly
       against an employee’s total entitlement to benefit under              Alcon Universal Ltd, established in Hünenberg (Switzerland),
       an occupational sick-leave scheme, a period of absence                represented by S. Clark, Solicitor, and C. Morcom QC, with an
       from work due to incapacity caused by a pregnancy                     address for service in Luxembourg.
       related illness arising during pregnancy?
3.     If the answer to question 1 is in the affirmative, does
       Directive 76/207 require an employer to have in place                 The Appellant claims that the Court should:
       special arrangements to cover absence from work due to
       incapacity caused by pregnancy related illness arising                —     set aside the judgment of the Court of First Instance
       during pregnancy?                                                           delivered on 5 March 2003, and that the contested
                                                                                   decisions of the Cancellation Division dated 15 December
4.     Does the operation of a sick leave scheme which treats                      1999 and of the First Board of Appeal dated 13 July
       employees suffering from pregnancy related illness and                      2001 be annulled;
       pathological illness come within the scope of Article 141
       of the EC Treaty and Directive 75/117 (2) ?
                                                                             —     make an order for the payment of its costs.
5.     If the answer to question 4 is in the affirmative, is it
       contrary to Article 141 of the Treaty and Directive 75/
       117 for an employer to reduce a woman’s pay after she
       has been absent from work for a designated period where
       the absence is caused by incapacity due to a pregnancy                Pleas in law and main arguments
       related illness arising during pregnancy in circumstances
       in which a non pregnant woman or a man absent from
       work for the same period as a result of incapacity due                The appellant submits that the decision of the Court of First
       to purely pathological illness would suffer the same                  Instance of 5 March 2003 was wrong in law in a number of
       reduction?                                                            respects. In particular the Court
( 1) Council Directive 76/207/EEC of 9 February 1976 on the                  (i)   failed to consider adequately or at all the specific require-
     implementation of the principle of equal treatment for men and                ments of Article 7(1)(d) of the Community Trade Mark
     women as regards access to employment, vocational training and                Regulation as to customary use, in the current language
     promotion, and working conditions (OJ L 039, 14.2.1976, p. 40-                or in the bona fide and established practices of the trade;
     42).
( 2) Council Directive 75/117/EEC of 10 February 1975 on the
     approximation of the laws of the Member States relating to the          (ii)  wrongly proceeded upon the assumption that mere
     application of the principle of equal pay for men and women (OJ               entries in directories or other reference sources by
     L 045, 19.2.1975, p. 19-20).                                                  themselves satisfied the requirements of Article 7(1)(d);
                                                                             (iii) wrongly took into consideration material not published
                                                                                   or not shown to have been published within the European
                                                                                   Union prior to 1 April 1996 and in so doing failed to
                                                                                   address the distinction between the requirements of
                                                                                   Articles 7(1)(d) and 50(1)(b) of the Regulation, the former
Appeal brought on 12 May 2003 by Alcon Inc., formerly                              alone being material for the purposes of the application
Alcon Universal Ltd, against the judgment delivered on                             for a declaration of invalidity;
5 March 2003 by the Second Chamber of the Court of
First Instance of the European Communities in case T-237/
01 (1) between Alcon Inc., formerly Alcon Universal Ltd                      (iv) failed to take into account the evidence of Alcon’s
and the Office for Harmonization in the Internal Market                            substantial policing of the trade mark BSS over a very
               (Trade Marks and Designs) (OHIM)                                    considerable period of time;
                          (Case C-192/03 P)                                  (v)   alternatively wrongly rejected the case put forward on
                                                                                   behalf of Alcon, that the mark BSS had in fact acquired
                           (2003/C 158/22)                                         distinctive character as a result of use, thus meeting the
                                                                                   requirements of Article 51(2) of the Regulation.
An appeal against the judgment delivered on 5 March 2003
                                                                             (1 ) OJ C 369, 22.12.2001, p. 13.
by the Second Chamber of the Court of First Instance of the
European Communities in case T-237/01 between Alcon Inc.,
formerly Alcon Universal Ltd and the Office for Harmonization
in the Internal Market (Trade Marks and Designs) (OHIM),