CELEX: C1995/101/08
Language: en
Date: 1995-04-22 00:00:00
Title: Reference for a preliminary ruling by the Tribunal de Travail de Tournai (Fourth Chamber) by judgment of that court of 14 February 1995 in the case of Institut National d'Assurances Sociales pour Travailleurs Indépendants against Hans Kemmler (Case C-53/95)

22 . 4 . 95          lEN                      Official Journal of the European Communities                                      No C 101 /3
Reference for a preliminary ruling by the Hof van Cassatie               Reference for a preliminary ruling by the House of Lords, by
by judgment of that court of 10 February 1995 in the case of             order of that court of 9 February 1995 , in the case of Regina
          Belgian State against Ghent Coal Terminal                      against Secretary of State for the Environment, ex-parte:
                           ( Case C-37/95 )                                          Royal Society for the Protection of Birds
                             ( 95/C 101 /05 )                                                       ( Case C-44/95 )
                                                                                                      ( 95/C 101/07)
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Hof van                        Reference has been made to the Court of Justice of the
Cassatie ( Court of Cassation ), Belgium, of 10 February                 European Communities by an order of the House of Lords
1995 , which was received at the Court Registry on                       of 9 February 1995 , which was received at the Court
16 February 1995 , for a preliminary ruling in the case of               Registry on 24 February 1995 , for a preliminary ruling in
Belgian State against Ghent Coal Terminal on the following               the case of Regina against Secretary of State for the
question:
                                                                         Environment, ex-parte : Royal Society for the Protection of
                                                                         Birds, on the following questions :
Does Article 17 of the Sixth Council Directive of 17 May                 1,    is a Member State entitled to take account of the
1 977 on the harmonization of the laws of the Member States                    considerations mentioned in Article 2 of Council
relating to turnover taxes ( a ) mean that the right to deduct                 Directive 79/409/EEC of 2 April 1979 on the
remains in existence for value added tax on investments                        conservation of wild birds ( a ) in classification of an area
which were originally intended for use in the undertaking                      as a Special Protection Area and/or in defining the
but were never in fact put into use by the undertaking ?                       boundaries of such an area pursuant to Article 4 ( 1 )
                                                                               and/or 4 ( 2 ) of that Directive ?
f 1 ) OJ No L 145 , 13 . 6 . 1977, p . 1 .
                                                                         2 . If the answer to question 1 is 'no', may a Member State
                                                                               nevertheless take account of Article 2 considerations in
                                                                               the classification process in so far as:
                                                                               (a ) they amount to a general interest which is superior
                                                                                     to the general interest which is repersented by the
                                                                                     ecological objective of the Directive ( i.e. the test
                                                                                     which the European Court has laid down in e.g.
Reference for a preliminary ruling from the                                          Commission v. Germany ('Leybucht Dykes') Case
Bundesgerichtshof by order of that court of 30 January                               57/89 for derogation from the requirements of
        1995 in the case of Siemens AG v. Henry Nold                                 Article 4 (4 )); or
                           ( Case C-42/95 )
                             ( 95/C 101/06 )                                   ( b ) they amount to imperative reasons of overriding
                                                                                     public interest such as might be taken into account
                                                                                     under Article 6 (4 ) of Council Directive 92/43/EEC
                                                                                     of 21 May 1992, on the conservation of natural
Reference has been made to the Court of Justice of the                               habitats and of wild fauna and flora ( 2 ).
European Communities by an order of the Second Civil
Senate of the Bundesgerichtshof ( Federal Court ofJustice ) of
30 January 1995 , which was received at the Court Registry               t 1 ) OJ No L 103 , 25 . 4 . 1979 , p . 1 .
on 23 February 1995 , for a preliminary ruling in the case of            ( 2 ) OJ No L 206 , 22 . 7. 1992 , p . 7.
Siemens AG v. Henry Nold, on the following question:
Is it compatible with the Second Council Directive of
13 December 1976 i 1 ), in particular Article 29 ( 1 ) and (4 )
thereof, for the legality of a resolution of a general meeting
of shareholders relating to an increase in capital in return for         Reference for a preliminary ruling by the Tribunal de
contributions in kind while at the same withdrawing the                  Travail de Tournai (Fourth Chamber) by judgment of that
shareholders ' right of pre-emption to be determined on the              court of 14 February 1995 in the case of Institut National
basis of a substantive review in accordance with the                     d'Assurances Sociales pour Travailleurs Indépendants
principles laid down in the Bundesgerichtshof's judgments                                      against Hans Kemmler
BGHZ 71 , 40 and BGHZ 83 , 319 ?
                                                                                                      Case C-53/95 )
                                                                                                      ( 95/C 101/08 )
(!) OJ No L 26 , 31 . 1 . 1977, p . 1 .
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by a judgment of the Tribunal de
                                                                         Travail de Tournai ( Labour Court, Tournai, Belgium)
 ---pagebreak--- No C 101 /4             EN                   Official Journal of the European Communities                                   22 . 4 . 95
( Fourth Chamber ) of 14 February 1995 , which was received             Action brought on 4 March 1995 by the French Republic
at the Court Registry on 1 March 1995 , for a preliminary                  aginst the Commission of the European Communities
ruling in the case of Institut National d'Assurances Sociales                                   (Case C-57/95 )
pour Travailleurs Indépendants against Hans Kemmler on
the following question:                                                                          ( 95/C 101/10 )
is the effect of Articles 48 , 51 , 52 and 59 of the Treaty of          An action against the Commission of the European
Rome that before 1 July 1982 a Member State ( in this case              Communities was brought before the Court of Justice of the
Belgium) could not require nationals of another Member                  European Communities on 4 March 1995 by the French
State (in this case the former Federal Republic of Germany)             Republic, represented by Edwige Belliard and Claude
who were pursuing the same independent occupation both                  Chavance, acting as Agents, with an address for service in
in its territory and in the former Federal Republic of                  Luxembourg at the French Embassy, 9 Boulevard Prince
                                                                        Henri .
Germany, where they were resident and subject to the social
security scheme, to pay contributions to the Belgian social
security scheme for independent occupations, having regard              The applicant claims that the Court should :
to the fact that such contributions could not entitle them to
any additional social security cover ?                                  — declare null and void the Commission communication
                                                                            94/C 360/08 on the freedom of management and
                                                                            investment of funds held by institutions for retirement
                                                                            provisions O ,
                                                                        — order the defendant to pay the costs of the
Action brought on 2 March 1995 by the Commission of the                     proceedings .
     European Communities against the Kingdom of Spain
                           ( Case C-55/95 )                             Pleas in law and main arguments adduced in support:
                             ( 95/C 101/09 )
                                                                        Admissibility of the application
An action against the Kingdom of Spain was brought before               The French Government requests the Court of Justice to
the Court of Justice of the European Communities on                     examine the contested communication in the light of
2 March 1995 by the Commission of the European                          its settled case-law, according to which, an action for
Communities, represented by Dimitrios Gouloussis, Legal                 annulment lies against all measures, whatever their nature
Adviser, and Blanca Rodriguez Galindo, of the Legal                     and form, adopted by the institutions and intended to
Service, with an address for service in Luxembourg at the               produce legal effects .
office of Giorgios Kremlis, Wagner Centre, Kirchberg.
                                                                        Lack of competence of the Commission, infringement of
The applicant claims that the Court should:                             Article 190 of the EC Treaty and of the principle of legal
                                                                        certainty
1 . declare that the Kingdom of Spain, by not adopting the
      necessary measures for compliance with Article 3 et seq.          The French Government considers that, by adopting the
      of Third Council Directive 90/232/EEC of 14 May 1990              communication in question, the Commission has exceeded
      on the approximation of the laws of the Member States             its powers .
      relating to insurance against civil liability in respect of
      the use of motor vehicles (*) has not fulfilled its               The contested act, in so far as it imposes new obligations on
      obligations under that directive;                                 the Member States, should have been founded on a specific
                                                                        legal basis . The ambiguity concerning the actual scope of the
2, order the Kingdom of Spain to pay the costs .                        obligations it lays down is contrary to the principle of legal
                                                                        certainty.
Pleas in law and main arguments adduced in support:
                                                                        Content of the aet
The binding nature of the provisions of the third paragraph
of Article 189 and first paragraph of Article 5 of the EC               The French Government notes that the contested act would
Treaty requires Member States to adopt the necessary                    have the effect of imposing on the Member States, in an
measures to adapt its domestic law to directives within the             unequivocally mandatory manner, objectives and new legal
period indicated for implementation and to communicate                  obligations as regards supervision of pension funds. Such
such measures forthwith to the Commission. That period,                 obligations would logically constrain certain Member States
laid down by Article 6 of the Directive, expired on                     to amend their internal legislation in force, which would be
31 December 1992 without Spain having adopted the                       an unexpected outcome of an act which, in principle, lacks
necessary provisions .                                                  any legal status.
f 1 ) OJ No L 129 , 19 . 5 . 1990 , p . 33 .                            (») OJ No C 360, 17. 12 . 1994, p . 7.