CELEX: C2003/055/17
Language: en
Date: 2003-03-08 00:00:00
Title: Case C-460/02: Action brought on 19 December 2002 by the Commission of the European Communities against the Italian Republic

8.3.2003               EN                     Official Journal of the European Union                                            C 55/9
Since, under Article 10(2) of the directive, producers and                  —     fails to lay down a maximum period of 7 years
performers must be treated on an equal footing with authors,                      for the selection of suppliers of groundlhandling
the United Kingdom is not entitled to exclude the right to                        services, in accordance with Article 11(1)(d), of the
claim equitable remuneration when a broadcast or cable                            directive in question;
programme containing a recording is seen or heard by a non-
paying audience as set out in paragraph 18 of Schedule 2 of
the 1988 Copyright, Designs and Patents Act.                                —     introduces, by Article 14, a social measure which is
                                                                                  not compatible with Article 18 of the directive;
In the view of the Commission, the criterion of a non-paying                —     provides, at Article 20, transitional provisions not
audience as defined in the aforementioned provision goes                          permissible under the directive;
much further than the exceptions to the right permitted under
Article 10 of the directive.
                                                                      (b)   order the Italian Republic to pay the costs.
Therefore, the Commission submits that by providing for
exceptions from the right to equitable remuneration granted
to performers where a broadcast or communication to the
public of protected subject matter is seen or heard by a non-
paying audience, the United Kingdom has failed to fulfil the          Pleas in law and main arguments
requirements of Community law and in particular of
Article 8(2) of Directive 92/100/EEC.
                                                                      Article 11 of Legislative Decree No 18 of 13 January 1999
( 1) OJ L 346, 27.11.1992, p. 61.                                     does not lay down the maximum period for which suppliers
                                                                      of services are selected at airports in which access to the
                                                                      market is by means of a selection procedure. Article 11(1)(d)
                                                                      of Directive 96/67/EC expressly provides that the maximum
                                                                      period is fixed at 7 years. The Commission therefore takes
                                                                      the view that the absence of a limit to the duration of
                                                                      groundhandling contracts at Italian airports is incompatible
                                                                      with the requirements laid down by the directive.
Action brought on 19 December 2002 by the Commission
of the European Communities against the Italian Republic              Article 18 of Directive 96/67/EC allows Member States to take
                                                                      the necessary measures to ensure protection of the rights of
                                                                      workers. However, such measures must not affect the appli-
                         (Case C-460/02)                              cation of the directive itself and must not obstruct other
                                                                      provisions of Community law. In other words, the protection
                                                                      of the rights of workers is indeed permissible under Article 18
                          (2003/C 55/17)                              of the directive provided that it does not run counter to the
                                                                      effective application of the directive so far as concerns
                                                                      groundhandling services. Article 14(1) of Legislative Decree
                                                                      No 18/99 lays down the objective of adopting measures to
                                                                      protect the number of posts of staff working for the previous
                                                                      service supplier and continuing employment. The second
An action against the Italian Republic was brought before the         paragraph of the article in question thus contains the obligation
Court of Justice of the European Communities on 19 December           to transfer staff any time there is a ‘transfer of business’
2002 by the Commission of the European Communities,                   affecting one or more categories of groundhandling services
represented by Mikko Huttunen and Antonio Aresu, acting as            under Annex A and B. Such a provision manifestly exceeds the
Agents.                                                               protection already guaranteed by Council Directive 77/187/
                                                                      EEC of 14 February 1977 ( 2) on the approximation of the laws
                                                                      of the Member States relating to the safeguarding of employees’
The applicant claims that the Court should :                          rights in the event of transfers of undertakings, businesses or
                                                                      parts of businesses, as amended by Council Directive 98/50/
                                                                      EC (3) and codified by Council Directive 2001/23/EC ( 4) of
(a)   Declare that the Italian Republic has failed to fulfil          12 March 2001. Accordingly, the Commission takes the view
      its obligations under Council Directive 96/67/EC ( 1) of        that Article 14 of Legislative Decree No 18/99 goes beyond
      15 October 1996 on access to the groundhandling                 what may be considered to be permissible measures to
      market at Community airports inasmuch as Legislative            guarantee the protection of the rights of workers under
      Decree No 18 of 13 January 1999                                 Article 18 of Directive 96/67/EC.
 ---pagebreak--- C 55/10                 EN                        Official Journal of the European Union                                            8.3.2003
Article 20 of Legislative Decree No 18/99 relates to contracts                  failed to fulfil its obligations under Article 11 of the Sixth
of employment under various organisational arrangements or                      Council Directive 77/388/EC ( 2) of 17 May 1977 on the
contractual conditions in force on 19 November 1998. Such                       harmonisation of the laws of the Member States relating
contracts concern staff working for users which carry out self-                 to turnover taxes — Common system of value added tax:
handling services, which are different from those defined in                    uniform basis of assessment; and
the directive. Those contracts remain in force and unchanged
until expiry; however, they may not be for longer than 6 years.
In actual fact, undertakings with ‘various organisational                 2.    Order Sweden to pay the costs.
arrangements’ are in practice authorised to act as self-handling
operators alongside other self-handling operators and service
suppliers.
The directive provides a clear definition for groundhandling              Pleas in law and main arguments
services operators — groundhandling for third parties and
users which carry out self-handling operations. Entities which
do not fulfil the ‘self-handling’ criteria laid down in Article 2(f)
may only operate groundhandling services for third parties.               The three conditions for inclusion of a subsidy in the taxable
Furthermore, Article 7(2) and Article 11(2) of the directive lay          amount are satisfied. It is clear from Regulation No 603/95
down the specific procedures to follow when appointing self-              that only the undertaking which processes fresh fodder can be
handling operators and suppliers of groundhandling services               granted aid and not producers of fresh fodder, and that the
for third parties. In light of the foregoing considerations,              processing undertaking both enters into a sales agreement
Article 20 appears to infringe those obligations.                         with undertakings which consume dried fodder (supply of
                                                                          goods) and processing agreements with producers of fresh
                                                                          fodder (supply of services). In the present case there is no
( 1) OJ 1996 L 272, p. 36.                                                doubt that the intervention body which pays the aid in
( 2) OJ 1977 L 61, p. 26.                                                 accordance with Regulation No 603/95 is a third person in
( 3) OJ 1998 L 201, p. 88.                                                relation to the processing undertaking and the buyer and that
( 4) OJ 2001 L 82, p. 16.                                                 this intervention takes place in accordance with a procedure
                                                                          for the award of public subsidies.
                                                                          Article 11 A point 1(a) of the Sixth Directive would be
                                                                          interpreted excessively narrowly if only types of aid which are
                                                                          calculated on the basis of the product price are included in the
                                                                          taxable amount for VAT. By its general reference to ‘subsidies
Action brought on 23 December 2002 by Commission                          directly linked to the price of [the taxable] supplies’, the
of the European Communities against the Kingdom of                        Community legislature actually intended to include in the
                              Sweden                                      taxable amount for VAT all aid which is directly linked to the
                                                                          price of the goods or services, ie the subsidies which directly
                                                                          influence the size of the supplier’s remuneration. Those
                          (Case C-463/02)                                 subsidies must, in turn, be directly linked to or have a causal
                                                                          connection with precisely indicated or quantifiable supplies of
                                                                          goods or services, ie the aid paid, if and to the extent that the
                           (2003/C 55/18)                                 goods or services are actually sold on the market. That is why
                                                                          the subsidy has a direct influence on the product’s sale price
                                                                          and that clearly shows the underlying idea that subsidies
                                                                          should be included in the taxable amount for VAT, on the
                                                                          basis of a non-restrictive interpretation of Article 11 A
An action against the Kingdom of Sweden was brought                       point 1(a) of the Sixth Directive and in accordance with the
before the Court of Justice of the European Communities on                general purpose of the article, namely taxation of all the
23 December 2002 by the Commission of the European                        remuneration paid in whole or in part by a person, no matter
Communities, represented by E. Traversa and K. Simonsson,                 who, and which is actually received by the supplier as a
acting as Agents, with an address for service in Luxembourg.              consequence of the sale of the goods or services.
The Commission claims that the Court should:
                                                                          (1 ) OJ L 63, 21.3.1995, p. 1.
                                                                          (2 ) OJ L 145, 13.6.1977, p. 1.
1.    Declare that, by failing to levy value added tax on the
      amount of aid paid under Council Regulation (EC)
      No 603/95 ( 1) of 21 February 1995 on the common
      organisation of the market in dried fodder, Sweden has