CELEX: C2001/303/17
Language: en
Date: 2001-10-27 00:00:00
Title: Case C-321/01 P: Appeal brought on 21 August 2001 (fax: 20.8.2001) by AGRANA Zucker und Stärke Aktiengesellschaft against the judgment delivered on 7 June 2001 by the Fifth Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-187/99 between AGRANA Zucker und Stärke Aktiengesellschaft and the Commission of the European Communities

C 303/10               EN                     Official Journal of the European Communities                                        27.10.2001
Reference for a preliminary ruling by the Arbeitsgericht                 the Commission of the European Communities was brought
Lübeck by order of that court of 6 August 2001 in the                    before the Court of Justice of the European Communities on
case of Wiebke Busch against Klinikum Neustadt GmbH                      21 August 2001 (fax: 20.8.2001) by AGRANA Zucker und
                       & Co Betriebs-KG                                  Stärke Aktiengesellschaft, represented by Walter Barfuß and
                                                                         Hanno Wollmann, Rechtsanwälte, of Messrs Schönherr Barfuß
                                                                         Torggler & Partner, of Tuchlauben 13, A-1014 Vienna, with
                         (Case C-320/01)
                                                                         an address for service in Luxembourg at the Chambers of
                                                                         Arendt & Medernach, 8-10 Rue Mathias Hardt, L-2010
                         (2001/C 303/16)                                 Luxembourg.
Reference has been made to the Court of Justice of the                   The appellant claims that the Court should:
European Communities by order of the Arbeitsgericht (Labour
Court) of 6 August 2001 which was received at the Court
                                                                         (1) set aside the whole of the contested judgment (1) and
Registry on 20 August 2001, for a preliminary ruling in the
case of Wiebke Busch against Klinikum Neustadt GmbH & Co.                       annul Commission Decision 1999/342/EC of 30 Septem-
                                                                                ber 1998 concerning aid which Austria plans to grant
Betriebs-KG on the following questions:
                                                                                to Agrana Stärke GmbH to build and convert starch
                                                                                production facilities (OJ 1999 L 131, p. 61), and, if
1.    Does it constitute illegal discrimination on grounds of                   appropriate, refer the case, after setting aside the contested
      sex, within the meaning of Article 2(1) of Council                        judgment, back to the Court of First Instance;
      Directive 76/207/EEC (1), if a woman who, after she has
      started her parenting leave (Erziehungsurlaub) whishes to
      shorten that leave with the consent of her employer, is            (2) order the Commission to pay the costs of the proceedings
      under an obligation to inform the employer if she knows                   before the Court of First Instance and of the appeal
      she is pregnant again before the agreement to shorten her                 proceedings.
      leave is concluded, where she cannot fully assume
      the proposed work because from the very first day a
      prohibition of employment applies in respect of particular
      tasks?                                                             Pleas in law and main arguments
2.    If the answer to Question 1 is answered in the affirmative:
                                                                         The Court of First Instance failed in the contested judgment
      In the case described, does it constitute unlawful discrimi-
                                                                         to state which obligations are imposed on the European
      nation on the grounds of sex, within the meaning of the
                                                                         Commission by Declaration No 31 set out in the Final Act of
      said Directive, if the employer then has the right to
                                                                         the 1995 Act of Accession (Joint Declaration on the processing
      rescind his consent to the shortening of parenting leave
                                                                         industry in Austria and Finland). It is apparent simply from an
      because he was mistaken about the fact that the woman
                                                                         interpretation of the literal wording of Declaration No 31 that
      was pregnant?
                                                                         the respondent in the present case was obliged to apply
                                                                         Article 87(3)(c) EC not (as usual) in a narrow way but broadly
(1) OJ L 39 of 14.2.1976, p. 40.
                                                                         (‘flexibly’). The respondent and the Court of First Instance
                                                                         failed to meet that requirement, inasmuch as they attributed to
                                                                         an aid measure recognised as being only small-scale an effect
                                                                         prejudicial to the Community. Had a flexible interpretation
                                                                         been applied to the rules of the Treaty relating to aid, the
                                                                         measure should have been approved.
Appeal brought on 21 August 2001 (fax: 20.8.2001) by                     In addition, the respondent and the Court of First Instance
AGRANA Zucker und Stärke Aktiengesellschaft against                      wrongly applied Declaration No 31, inasmuch as they declined
the judgment delivered on 7 June 2001 by the Fifth                       to include in their calculations, first, the advantage accruing to
Chamber (Extended Composition) of the Court of First                     the Community from the non-transitional accession of Austria
Instance of the European Communities in Case T-187/99                    and, second, the interest of Austria in the restructuring of
between AGRANA Zucker und Stärke Aktiengesellschaft                      its processing industry. It is apparent from a teleological
    and the Commission of the European Communities                       interpretation, of Declaration No 31 that the Commission is
                                                                         obliged, when assessing individual aid projects assisting the
                                                                         absorption of the Austrian processing industry into the internal
                        (Case C-321/01 P)                                market, to take those factors into account. By declaring that
                                                                         there was no obligation to weigh up the various interests
                         (2001/C 303/17)                                 involved, the Court of First Instance (like the Commission
                                                                         before it) has infringed Community law.
An appeal against the judgment delivered on 7 June 2001 by
                                                                         (1) OJ C 314 of 30.10.1999, p. 10.
the Fifth Chamber (Extended Composition) of the Court of
First Instance of the European Communities in Case T-187/99
between AGRANA Zucker und Stärke Aktiengesellschaft and