CELEX: C1999/121/17
Language: en
Date: 1999-05-01 00:00:00
Title: Case C-37/99: Reference for a preliminary ruling by the Hoge der Nederlanden by judgment of 5 January 1999 in the criminal proceedings against R. Donkersteeg

1.5.1999                EN                    Official Journal of the European Communities                                       C 121/9
Reference for a preliminary ruling from the Arrondisse-                               nationals and who are pursuing their studies in the
mentsrechtbank te Amsterdam by judgment of that court                                 Netherlands?
of 28 January 1999 in the case of H. Fahmi (Case No AKW                      2. Must Article 48 or Article 52 of the EEC Treaty
97/5082/24) and M. M. Esmoris Cerdeiro-Pinedo Amado
                                                                                  be interpreted as meaning that the restriction of
(Case No AKW 97/7018/24) against Bestuur van de Sociale
                                                                                  entitlement to receive from the national authorities a
                        Verzekeringsbank
                                                                                  contribution to the cost of maintaining student chil-
                                                                                  dren aged 18 or over results, for nationals of Member
                          (Case C-33/99)                                          States other than the Netherlands who move to the
                                                                                  Netherlands or for the children of such nationals, in
                                                                                  an obstacle to freedom of movement for workers,
                         (1999/C 121/16)                                          alternatively to freedom of establishment, which is
                                                                                  such as to render that restriction incompatible with
                                                                                  those Articles or either of them?
Reference has been made to the Court of Justice of the
European Communities by judgment of the Arrondissements-
                                                                         (1) OJ L 28, 30.1.1997, p. 1 (consolidated version).
rechtbank te Amsterdam (Amsterdam District Court) of 28 Jan-             (2) OJ, English special Edition 1968 (II), p. 475.
uary 1999, receveid at the Court Registry on 8 February 1999,
for a preliminary ruling in the case of H. Fahmi and M. M.
Esmoris Cerdeiro-Pinedo Amado against Bestuur van de Sociale
Verzekeringsbank on the following questions:
                                                                         Reference for a preliminary ruling by the Hoge Raad der
— In the case of H. Fahmi (Case No AKW 97/5082/24):                      Nederlanden by judgment of 5 January 1999 in the
                                                                                 criminal proceedings against R. Donkersteeg
    1. a) Must Article 41(1) of the Cooperation Agreement
            be interpreted as meaning that a Moroccan worker                                        (Case C-37/99)
            may rely on the prohibition of discrimination laid
            down in that provision if he no longer resides on                                      (1999/C 121/17)
            the territory of a Member State of the European
            Community?                                                   Reference has been made to the Court of Justice of the
                                                                         European Communities by judgment of 5 January 1999 by
                                                                         the Hoge Raad der Nederlanden (Supreme Court of the
        b) If so, does Article 41(3) of the Cooperation Agree-           Netherlands), which was received at the Court Registry on
             ment preclude reliance on Article 41(1) thereof by          10 February 1999, for a preliminary ruling in the criminal
             a Moroccan worker whose children reside outside             proceedings against R. Donkersteeg on the following ques-
             the Community?                                              tions:
    2. If a worker such as the first plaintiff may rely on the           1. Is Article 1 of Council Directive 83/189/EEC (1) to be
        prohibition of discrimination laid down in Article                   interpreted as meaning that the provision in Article 2(1) of
        41 (1) of the Cooperation Agreement, does that                       the Verordening Minimumeisen Varkesnhouderij 1993
        prohibition have the effect of rendering the abolition               (1993 Regulation on the minimum requirements for pig
        of the entitlement to receive child allowance imper-                 keeping) referred to under heading 4, which states that:
        missible if the effect of that abolition is such that                The operator is required to ensure that one or more proper
        that right is replaced by an entitlement to receive a                disinfectant containers or appropriate cleaning facilities for
        contribution to (inter alia) the cost of maintaining                 disinfecting footwear are present on his holding, must be
        student children aged 18 or over which far more                      regarded as a technical regulation within the meaning of
        frequently benefits Netherlands nationals or persons                 that Directive?
        insured under the AKW who reside in the Netherlands              2. Is Article 1 of Directive 83/189/EEC to be interpreted as
        than workers such as the first plaintiff?                            meaning that the provision in Article 2(1) of the Verorde-
                                                                             ning Bestrijding Ziekte van Aujeszky 1993 (1993 Regu-
— In the case of M. M. Esmoris Cerdeiro-Pinedo Amado (Case                   lation on the combating of Aujeszky’s disease) referred to
    No AKW 97/7018/24):                                                      under heading 8, which states that: Every operator is
                                                                             required to have pigs present on his holding vaccinated
    1. a) Does Article 3 of Council Regulation (EEC) No                      against Aujeszky’s disease in accordance with the vacci-
            1408/71 (1), or any other provision of that Regu-                nation scheme set up for the animal species concerned
            lation, preclude the abolition of the right to child             and the individual areas by the Afdeling (pig breeding
            allowance for student children over the age of 18 if             department) on the recommendation of the Stichting
            eligibility for the entitlement which replaces that              (veterinary care association), must be regarded as a techni-
            right is in principle enjoyed only by students who               cal regulation within the meaning of that Directive?
            are Netherlands nationals and who are pursuing               3. Where a draft technical regulation within the meaning
            their studies in the Netherlands?                                of Directive 83/189/EEC is not communicated to the
                                                                             Commission pursuant to Articles 8 and 9 of that Directive,
        b) Must Article 7(1) of Council Regulation (EEC)                     does that render such a regulation inapplicable to the
             No 1612/68 (2) be interpreted as precluding the                 extent to which it constitutes a barrier to trade or the free
             abolition of the right to child allowance for student           movement of goods in a particular case, or should it be
             children over the age of 18 if eligibility for the              ruled that such a provision cannot be applied where the
             entitlement which replaces that right is in principle           regulation constitutes, or may constitute, a barrier to trade
             enjoyed only by students who are Netherlands                    in general irrespective of the particular case?
 ---pagebreak--- C 121/10               EN                       Official Journal of the European Communities                                        1.5.1999
4. If the second question is to be answered in the affirmative,                compatible with Articles 73b and 52 of the EC Treaty,
     does the fact that in December 1995 the Netherlands                       such a procedure must be justified by overriding consider-
     programme for combating Aujeszky’s disease in pigs was                    ations in the public interest and based on criteria which
     approved by the European Commission for 1996 have any                     are objective, fixed and public, so that the discretion
     bearing on the question whether Article 2(1) of the                       enjoyed by the national authorities is reduced to a
     Veordening Bestrijding Ziekte van Aujeszky is applicable                  minimum.
     to the present case? If so, what bearing does it have?
                                                                           c) In the context of the privatisation of ENI and Telecom
(1) Council Directive 83/189/EEC of 28 March 1983 laying down a                Italia, the Commission maintains that the introduction of
    procedure for the provision of information in the field of technical       special powers is not justified. The Italian authorities
    standards and regulations (OJ L 109, 26.4.1983, p. 8).                     should have been able to meet their needs with order
                                                                               provisions which did not involve the compulsory limi-
                                                                               tation of property rights and were accordingly less restric-
                                                                               tive of the freedoms at issue.
Action brought on 19 February 1999 by the Commission
of the European Communities against the Italian Republic
                          (Case C-58/99)
                                                                           Action brought on 19 February 1999 by the Commission
                         (1999/C 121/18)                                   of the European Communities against 1. Manuel Pereira
                                                                           Roldão & Filhos, Lda.; 2. Instituto Superior Técnico; and
                                                                                   3. King, Taudevin & Gregson (Holdings) Ltd
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 19 February
1999 by the Commission of the European Communities,                                                 (Case C-59/99)
represented by Antonio Aresu and Maria Patakia of its Legal
Service, acting as Agents, with an address for service in                                          (1999/C 121/19)
Luxembourg at the office of Carlos Gómez de la Cruz, Wagner
Centre, Kirchberg.                                                         An action against 1. Manuel Pereira Roldão & Filhos, Lda.; 2.
                                                                           Instituto Superior Técnico; and 3. King, Taudevin & Gregson
The applicant claims that the Court should:                                (Holdings) Ltd was brought before the Court of Justice of
                                                                           the European Communities on 19 February 1999 by the
— declare that, by adopting Articles 1(5) and 2 of the                     Commission of the European Communities, represented by
     consolidated text of Decree Law No 332 of 31 May 1994,                Francisco de Sousa Fialho, of its Legal Service, and by Olivier
     converted with amendments into Law No 474 of 30 July                  Couvert-Castéra, a national civil servant on secondment to its
     1994, and the decrees concerning certain special powers               Legal Service, acting as Agents, with an address for service in
     in relation to the privatisation of ENI and Telecom Italia,           Luxembourg at the office of Carlos Gómez de la Cruz, of its
     the Italian Republic has failed to fulfil its obligations under       Legal Service, Wagner Centre, Kirchberg.
     Articles 52, 59 and 73b of the EC Treaty;
— order the Italian Republic to pay the costs of the proceed-              The applicant claims that the Court should order the defend-
     ings.                                                                 ants to pay EUR 357 813, together with EUR 185 833,78 by
                                                                           way of interest until 1 January 1999, plus any interest accrued
                                                                           until full repayment is actually made; and the costs of these
Pleas in law and main arguments adduced in support:                        proceedings.
a) The sentence in Article 1(5) of the consolidated text which
     provides that certain work may be undertaken only by                  Pleas in law and main arguments adduced in support:
     individual professionals who have been registered as
     provided for by statute for at least five years is incompatible       This action has been brought under Article 181 of the EC
     with Articles 59 and 52 of the EC Treaty, in so far as it             Treaty seeking repayment of money paid in advence under a
     unlawfully excludes any professional legally operating in             contract in terms of which the European Community under-
     other Member States or whose establishment in Italy took              took to give financial assistance to the first applicant to enable
     place recently.                                                       him to install a low-cost, moderate pollution tank for the
                                                                           melting of lead crystal, as part of the promotion of energy
                                                                           technology in Europe (thermie programme) provided for by
b) Article 2 of the consolidated text, which confers special               Council Regulation (EEC) No 2008/90 (1). That contract was
     powers on the Treasury Minister, places a restriction on              terminated by the applicant on the ground of breach of
     freedom of movement for persons and on the right of                   contract by the defendants.
     establishment.
     The procedure for the authorisation of significant share              (1) OJ L 185, 17.7.1990, p. 1.
     purchases by investors and of agreements between share-
     holders gives the national authorities a power to discrimi-
     nate which they may use arbitrarily. In order to be