CELEX: C1996/197/21
Language: en
Date: 1996-07-06 00:00:00
Title: Appeal brought on 7 May 1996 by Jan Robert de Rijk against the judgment delivered on 7 March 1996 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-362/94 between Jan Robert de Rijk and the Commission of the European Communities (Case C-153/96 P)

6 . 7. 96            LM                    Official Journal of the European Communities                                  No C 197/ 11
the Court ofJustice of the European Communities on 3 May                    shipping register to a vessel which is owned in whole or
1996 by Roberto Galtieri, represented by Pietro Como, with                  in part by the Government, a Minister of State, an Irish
an address for service in Luxembourg at the Chambers of S.                 citizen or an Irish body corporate, Ireland has failed to
Oostvogels, 13 rue Aldringen .                                             comply with Articles 6 , 48 , 52 and 58 of the EC Treaty
                                                                           and Article 7 of Commission Regulation ( EEC )
The appellant claims that the Court should :                               No 1251 /70/EEC ( 1 ) of 29 June 1970 and Article 7 of
                                                                            Council     Directive    75/34/EEC     of  17    December
( a) declare the appeal admissible and well founded;                        1974 ( 2 );
( b ) reverse the judgment of the Court of First Instance             2 , order Ireland to pay the costs of these proceedings .
       ( First Chamber );
                                                                      Pleas in law and main arguments:
(c) declare the original action brought by the appellant well
       founded ;                                                      The Commission contents that where a vessel of whatever
                                                                      type it may be is an instrument for pursuing an economic
( d ) annul the decision of the Personnel Division of the             activity, Ireland has infringed Article 52 of the EC Treaty by
       European Parliament of 19 January 1994 to recover the          restricting registration of those vessels in the Irish register
       sum of Lfrs 267 628 (as amended by the European                and the right to fly the Irish flag to those which are owned or
       Parliament's letter of 21 June 1994 );                         shared by the Government, a Minister of State, an Irish
                                                                      citizen or an Irish body corporate .
(e ) order the European Parliament to reimburse forthwith
       the sums previously deducted from the appellant's              Furthermore, the requirement laid down by Section 2 of the
       salary from February 1994 onwards;                             Mercantile Marine Act ( 1955 ) that companies should be
                                                                      established under and subject to Irish law and have their
( f) order the European Parliament to pay default interest            principal place of business in Ireland impedes the right of
       from February 1994, together with costs;                       companies which fulfil the conditions of Article 58 of the EC
                                                                      Treaty and are thereby entitled to exercise freedom of
(g) order the European Parliament to pay Lfrs 100 000 by              establishment in order to manage and operate vessels by way
       way of compensation for the non-material damage                of an agency, branch or subsidiary. As to the condition
       caused by the implementation of the abovementioned             imposed on companies to have their principal place of
       decision of 19 January 1994.                                   business in Ireland, the Commission is of the opinion that
                                                                      this condition unjustifiably precludes a company which is
Pleas in law and main arguments:                                      registered in another Member State from operating a vessel
                                                                      on the basis of a real and continuous representation situated
Infringement of Community law by the Court of First                   onshore in Ireland .
Instance, particularly as regards the assessment as to
whether the payments forming the object of the contested              Where the vessel is not an instrument for pursuing an
decision to recover the sum aforesaid were patently                   economic activity but is rather used as a pleasure craft, the
undue .                                                               Commission considers that, in providing for such
                                                                      restrictions as those mentioned above, Ireland has infringed
(M OJ No C 108 , 13 . 4 . 1996 , p. 7 .                               Articles 6, 48 and 52 of the EC Treaty, Article 7 of
                                                                      Commission Regulation ( EEC ) No 1251/70 and Article 7 of
                                                                      Council Directive 75/34/EEC .
                                                                      (!) OJ No L 142, 30. 6 . 1970, p. 24; EE 05 Fl , p. 93 .
                                                                      (2 ) OJ No L 14, 20. 1 . 1975, p. 10; EE 06 Fl , p. 183 .
Action brought on 6 May 1996 by the Commission of the
              European Communities against Ireland
                         ( Case C-151/96 )
                           ( 96/C 197/20 )
                                                                      Appeal brought on 7 May 1996 by Jan Robert de Rijk
An action against Ireland was brought before the Court of             against the judgment delivered on 7 March 1996 by the Fifth
Justice of the European Communities on 6 May 1 996 by the             Chamber of the Court of First Instance of the European
 Commission of the European Communities, represented by               Communities in Case T-362/94 between Jan Robert de Rijk
 Frank Benyon and Xavier Lewis, Legal Adviser and Member                  and the Commission of the European Communities (*)
 of the Legal Service respectively acting as Agent, with an
                                                                                              (Case C-1 53/96 P)
 address for service in Luxembourg at the office of Carlos
 Gômez de la Cruz, Member of its Legal Service, Wagner                                           ( 96/C 197/21 )
 Centre, Kirchberg.
                                                                       An appeal against the judgment delivered on 7 March 1996
 The applicant claims that the Court should :                          by the Fifth Chamber of the Court of First Instance of the
                                                                       European Communities in Case T-362/94 between Jan
 1 , declare that, by maintaining in force laws, regulations           Robert de Rijk and the Commission of the European
      and administrative provisions which limit the right to           Communities was brought before the Court of Justice of the
      register a vessel other than a fishing vessel in the Irish       European Communities on 7 May 1996 by Jan Robert de
 ---pagebreak--- No C 197/ 12           EN                  Official Journal of the European Communities                                              6 . 7. 96
Rijk, represented by Nicolas Lhoest, with an address for              1 . Is the introduction by a Member State of a flexible
service in Luxembourg at the offices of Fiduciaire Myson, 1                 retirement system in accordance with Council
rue Glesener .                                                              Recommendation 82/857/EEC of 10 December 1982 on
                                                                            the principle of a Community policy with regard to
The appellant claims that the Court should :
                                                                            retirement age (*) covered by the exclusion provided for
                                                                            in Article 7 ( 1 ) ( a ) of Council Directive 79/7/EEC of
                                                                            19 December 1978 on the progressive implementation
1 , declare the appeal admissible and well founded;                         of the principle of equal treatment for men and women
                                                                            in matters of social security ( 2 ), in the sense that the
2 , consequently:                                                           fixing of a flexible retirement age for men and women,
                                                                            for instance between the ages of 60 and 65 years, cannot
    ( a ) annul the judgment delivered;                                     be treated purely and simply in the same way as the
                                                                            setting of an age for terminating employment identical
    ( b ) itself determine the case and, adjudicating on his                for everyone and, even coupled with maintenance of a
          initial application:                                              different pension calculation for men and women, is not
                                                                            necessarily contrary to the principle of equal treatment
          — annul the decision of 18 January 1994 by which                  for men and women laid down in Article 4 ( 1 ) of
              the respondent decided to reimburse to the                    Directive 79/7/EEC, since under such a system all future
              appellant the sum of Bfrs 4 412 under the                     pensioners will have the option of freely determining
              supplementary sickness insurance scheme,                      when their pension will commence on the basis of their
                                                                            own work record; this will in particular be the case if the
          — in so far as may be necessary, annul the                        system thus introduced corresponds to a necessary aim
              respondent's decision of 15 July 1994 rejecting               of the State's social policy and is justified on grounds
              the appellant's complaint dated 18 April                      unrelated to discrimination on grounds of sex ?
               1994 ,
          — order the respondent to pay the full difference           2 . If the answer is in the negative, does the achievement
              between the expenditure actually incurred and                 of the objectives laid down by Directive 79/7/EEC
              the payments due under the joint sickness                     and Recommendation 82/857/EEC, namely the
              insurance scheme, amounting in the present                    introduction of a flexible retirement age for everyone
              case to Bfrs 4 950 ,                                          and equality for men and women in matters of social
                                                                            security, when account is also taken of the combination
          — declare that the general rules implementing                     of formal equality with substantive discrimination
              the first and second paragraphs of Article 24                 existing between men and women in connection with
              of the Staff Regulations are unlawful, and                    statutory retirement pensions, require a Member State
                                                                            in mechanical fashion to level the conditions of
              consequently annul them;
                                                                            entitlement to retirement pension downwards, by
                                                                            ensuring that men and women are entitled to take a
    (c ) order the respondent to pay all the costs of the
                                                                            retirement pension, as they choose, from the lowest age
          appeal and of the proceedings at first instance .
                                                                            and according to the method of calculation applied
                                                                            hitherto to the category which became entitled from that
The pleas in law and main arguments are the same as those                   age to a retirement pension, despite the consequences for
advanced in the application at first instance .                             the financial equilibrium of retirement systems which
                                                                            were not set up on the basis of those principles ?
(!) OJ No C 380 , 31 . 12 . 1994, p . 24 .
                                                                      3 . Further, in the event that the first question is answered in
                                                                            the negative, should the solution most favourable to the
                                                                            person concerned, with regard to Community law, be
                                                                            applied to the entire work record of the person
                                                                            concerned or may it be applied only to the years of work
Reference for a preliminary ruling from the 11th Chamber                    recorded subsequent either to entry into force of the
of the Tribunal du Travail ( Labour Court), Brussels, by a                  Law introducing a flexible age of retirement, or the
judgment of that court of 22 April 1996 in the case of Louis                date of the judgment given by the Court of Justice
            Wolfs v. Office National des Pensions                           of the European Communities on 1 July 1993 in
                                                                            Case C-l 54/92 Van Cant v . Office National des
                        ( Case C-154/96 )                                   Pensions ( 3 )?
                          ( 96/C 197/22 )
                                                                      f 1 ) OJ No L 357, 18 . 12 . 1982 , p . 27; EE 05 F3 , p . 39 .
Reference has been made to the Court of Justice of the                ( 2 ) OJ No L 26 , 10 . 1 . 1979 , p . 4; EE 05 F2 , p . 174 .
European Communities by a decision of the Tribunal du                 ( 3 ) OJ No C 204 , 28 . 7 . 1993 , p . 7.
Travail ( 11th Chamber ), Brussels, of 22 April 1996, which
was received at the Court Registry on 7 May 1996 , for a
preliminary ruling in the case of Louis Wolfs v. Office
National des Pensions on the following questions :