CELEX: C1998/299/40
Language: en
Date: 1998-09-26 00:00:00
Title: Reference for a preliminary ruling by the Sala de lo Social del Tribunal Superior de Justicia de la Comunidad Valenciana by order of that court of 10 July 1998 in the Case of SIMAP (Sindicato de Médicos de Sanidad de Asistencia Pública) against the Conselleria de Sanidad y Consumo de la Generalitat Valenciana (Case C-303/98)

26.9.98               EN                  Official Journal of the European Communities                                           C 299/25
    condition not provided for by the definitive list                consequences set out therein take effect even in the
    contained in those provisions,                                   absence of any corresponding provision of national law?
                                                                     (1) OJ L 336, 23.12.1994, p. 213.
Ð breach of the principle that no one is bound to do the
    impossible', in that it held their failure to discharge an
    impossible burden of proof to be decisive,
Ð breach of Article 5(2) of Council Regulation (EEC)
    No 1697/79 and Article 220 of Regulation (EEC)
    No 2913/92, in that it interpreted those provisions as           Reference for a preliminary ruling from the Bundessozial-
    meaning that the customs authorities did not commit              gericht (Federal Social Court) by order of that Court of
    an error' when the undue payment was consistent                 13 May 1998 in the Case of Manfred Sehrer v. Bundes-
    with the declaration made by the exporter, and                   knappschaft (Federal Pension Fund for Miners),
    therefore there was an induced' error,                          intervener: Landesversicherungsanstalt für das Saarland
                                                                           (Regional Insurance Institution for the Saarland)
                                                                                              (Case C-302/98)
Ð breach of the principle of protection of legitimate
    expectations. The Court of First Instance upheld the                                        (98/C 299/39)
    unusual concept of commercial risk' to be borne by
    all traders, although well aware that it is possible for
    the customs authorities to alter their findings,                 Reference has been made to the Court of Justice of the
                                                                     European Communities by an order of the Bundessozialge-
                                                                     richt (Eighth Chamber) of 13 May 1998, which was
Ð infringement of Articles 30 and 36 of the Treaty, in
                                                                     received at the Court Registry on 3 August 1998, for a
    that, by declaring that a customs' risk existed, it
                                                                     preliminary ruling in the Case of Manfred Sehrer v. Bun-
    upheld the need for a disguised restriction on trade
                                                                     desknappschaft, intervener: Landesversicherungsanstalt für
    between Member States,
                                                                     das Saarland on the following question.
Ð breach of the principle ne bis in idem and of Article 5
                                                                     Do Articles 6 and 48 to 51 of the Treaty establishing the
    of Council Regulation (EEC) No 1697/79 and
                                                                     European Community and Article 3 of Council Regulation
    Article 220 of Regulation (EEC) No 2913/92, in that
                                                                     (EEC) No 1408/71 (1), on the application of social security
    it did not annul the Decision, or even the part of the
                                                                     schemes to employed persons, to self-employed persons
    Decision authorising recovery of duties relating to a
                                                                     and to members of their families moving within the
    customs slip which had already been paid by CPL
                                                                     Community, preclude national rules under which the
    Imperial 2 SpA.
                                                                     whole of a supplementary French pension paid on the
                                                                     basis of a collective agreement is subject to contributions
(1) OJ L 197, 3.8.1979, p. 1.                                        by the pensioner both to the French sickness insurance
(2) OJ L 302, 19.10.1992, p. 1.                                      scheme and to the German sickness insurance scheme?
                                                                     (1) Official Journal, English Special Edition, First Series II, p. 416.
Reference for a preliminary ruling by the Arrondissements-
rechtbank, The Hague in the Case of Parfums Christian
            Dior SA against Tuk Consultancy BV
                                                                     Reference for a preliminary ruling by the Sala de lo Social
                       (Case C-300/98)                               del Tribunal Superior de Justicia de la Comunidad Valen-
                         (98/C 299/38)                               ciana by order of that court of 10 July 1998 in the Case
                                                                     of SIMAP (Sindicato de MeÂdicos de Sanidad de Asistencia
                                                                     PuÂblica) against the Conselleria de Sanidad y Consumo de
                                                                                         la Generalitat Valenciana
Reference has been made to the Court of Justice of the
European Communities by judgment of the Arrondisse-                                           (Case C-303/98)
mentsrechtbank (District Court), The Hague, of 25 June
                                                                                                (98/C 299/40)
1998, received at the Court Registry on 29 July 1998, for
a preliminary ruling in the Case of Parfums Christian Dior
SA against Tuk Consultancy BV on the following question.
                                                                     Reference has been made to the Court of Justice of the
                                                                     European Communities by order of the Sala de lo Social
Is Article 50(6) of the Agreement on trade-related aspects           del Tribunal Superior de Justicia de la Comunidad Valen-
of intellectual property rights (1) to be interpreted as             ciana (Chamber for Labour Matters of the High Court of
having direct effect in the sense that the legal                     Justice of the Valencia Community) of 10 July 1998,
 ---pagebreak--- C 299/26             EN                  Official Journal of the European Communities                                 26.9.98
which was received at the Court Registry on 3 August                       whole of that time be regarded as working time
1998, for a preliminary ruling in the case of SIMAP (Sindi-                or only such time as is actually spent in carrying
cato de MeÂdicos de Sanidad de Asistencia PuÂblica against                 out the activity for which they are called out, as
the Conselleria de Sanidad y Consumo of the Generalitat                    is the national practice referred to above at
Valenciana on the following questions relating to Council                  paragraph 8?
Directive 93/104/EC (1) concerning certain aspects of the
organisation of working time):                                         (c) Where the medical practitioners concerned are on
                                                                           call by being present at the Centre, must the
1. Questions on the general application of the Directive:                  whole of that time be regarded as ordinary
                                                                           working time or antisocial hours, according to
    (a) In view of Article 118a of the EC Treaty and the                   the national practice referred to above at
         reference in Article 1(3) of the Directive to all                 paragraph 8?
         sectors of activity, both public and private, within
         the meaning of Article 2 of Council Directive 89/          3. Questions on the average working time:
         391/EEC (2), which states that it is not applicable
         where characteristics peculiar to certain specific           (a) Must the working time spent on call be included
         public service activities . . . inevitably conflict               when determining the average working time for
         with it', must it be understood that the work of                  each seven-day period, pursuant to Article 6(2) of
         the medical practioners in the Equipos de Aten-                   the Directive?
         ción Primaria affected by the dispute is covered
         by the exception referred to?
                                                                       (b) Must the time spent on call be regarded as
                                                                           overtime?
    (b) Article 1(3) of the Directive also refers to
         Article 17, using the phrase without prejudice'.
         Despite the fact that, as stated above, there is no           (c) Despite the absence of harmonising legislation,
         harmonising state or autonomous regional                          can the reference period mentioned in
         legislation, must this silence be taken as a                      Article 16(2) of the Directive be understood to be
         derogation from Article 3, 4, 5, 6, 8 or 16 when,                 applicable and, if so, the derogations therefrom
         on account of the specific characteristics of the                 laid down in Article 17(2) and (3) in conjunction
         activity concerned, the duration of the working                   with paragraph (4)?
         time is not measured and/or predetermined?
                                                                       (d) If, as a result of the option provided for in
    (c)  Does the exemption, in Article 1(3) in fine of the                Article 18(1)(b), Article 6 of the Directive is not
         Directive, in respect of the activities of doctors in            applied, and despite the absence of harmonising
         training' lead, rather, to the conclusion that the                legislation, may Article 6 be considered
         activities of other doctors are in fact covered by                inapplicable on the ground that the worker's
         the Directive?                                                    agreement to perform such work has been
                                                                           obtained? Is the agreement of the two sides of
                                                                           industry as expressed in a collective agreement or
    (d) Does the reference to the fact that the provisions
                                                                           agreement between them tantamount to the
         of Directive 89/391/EEC are fully' applicable to
                                                                           worker's agreement in this respect?
         the matters referred to in paragraph 2 have any
         particular implications with regard to reliance
         being placed on it and its application?                    4. Questions on the nocturnal nature of the work:
2. Questions on working time:                                          (a) In view of the fact that normal working time is
                                                                           not at night, but that part of the on-call shifts
    (a) Article 2(1) of the Directive defines working time                 periodically to be performed by some of the
         as any period during which the worker is                         medical practitioners concerned is performed at
         working, at the employer's disposal and carrying                  night, and in the absence of harmonising
         out his activity or duties, in accordance with                    legislation, are those medical practitioners to be
         national laws and/or practice'. In view of the                    regarded as night workers pursuant to
         national practice referred to above at paragraph 8                Article 2(4)(b) of the Directive?
         of this order and in view of the absence of
         harmonising legislation, must the national                    (b) For the purposes of the option provided for in
         practice of excluding from the 40 hours per week                  Article 2(4)(b)(i) of the Directive, could national
         the time spent on call continue to be applied, or                 legislation on night work by workers subject
         must the general and specific provisions of                       to private law be applied to the medical
         Spanish legislation on working time relating to                   practitioners concerned whose employment
         private law employment relationships be applied                   relationship is governed by public law?
         by analogy?
                                                                       (c) Do the normal' hours of work referred to in
    (b) Where the medical practitioners concerned are on                   Article 8(1) of the Directive also include on-call
         call under the contact system rather than through                 shift performed under the contact system or while
         their actual presence at the Centre, must the                     physically present?
 ---pagebreak--- 26.9.98                EN                    Official Journal of the European Communities                                  C 299/27
5. Questions on shift work and shift workers:                           Ð infringement of Articles 90 and 91 of the Staff
                                                                            Regulations of Officials,
     In view of the fact that the working time at issue is
     shift work only in relation to on-call duty, and in the
     absence of harmonising legislation, can the work                   Ð infringement of Articles 26 and 43 of the Staff
     performed by the medical practitioners concerned be                    Regulations of Officials: contrary to the assertions of
     regarded as shift work and must they be regarded as                    the Court of First Instance, the absence of periodic
     shift workers in accordance with the definition                        staff reports for 1991 to 1993 and 1993 to 1995 not
     contained in Article 2(5) and (6) of the Directive?                    only affected the administrative situation and career of
                                                                            the appellant but also deprived that official of all
(1) Council Directive 93/104/EC of 23 November 1993
                                                                            defence rights,
    concerning certain aspects of the organisation of working time
    (OJ L 307, 13.12.1993, p. 18).                                      Ð breach of the concept of interests of the service' and
(2) OJ L 183, 29.6.1989, p. 1.
                                                                            breach of the audi alteram parte rule and of the
                                                                            principles of equal treatment and of non-
                                                                            discrimination: in finding that the Commission did not
                                                                            have to prove the facts alleged or the extent to which
                                                                            blame should be apportioned between the two officials
Appeal brought on 3 August 1998 by W. against the                           concerned, the Court of First Instance has contravened
judgment delivered on 28 May 1998 by the Fifth Chamber                      the case-law and also implicitly acknowledged that the
of the Court of First Instance of the European                              Commission committed an error of assessment and
Communities in Joined Cases T-78/96 and T-170/96                            misused its powers,
between W. and the Commission of the European
                           Communities                                  Ð infringement of Article 25(1) of the Staff Regulations
                       (Case C-304/98 P)                                    of Officials.
                          (98/C 299/41)
                                                                        (Case T-170/96)
An appeal against the judgment delivered on 28 May
1998 by the Fifth Chamber of the Court of First Instance                Ð infringement of Articles 215(2) and 178 of the EC
of the European Communities in Joined Cases T-78/96                         Treaty: for the Court of First Instance to regard an
and T-170/96 between W. and the Commission of the                           action for damages as a claim for compensation
European Communities was brought before the Court of                        ancillary to an action for annulment amounts to a
Justice of the European Communities on 3 August 1998                        distortion of the applicant's pleadings. The material
by W., represented by Gilles Bouneou, of the Luxembourg                     and non-material damage in respect of which
Bar, with an address for service in Luxembourg at 4 rue                     reparation is sought in the present case arises out of a
de l'Avenir.                                                                failure by the administration to adopt a decision and
                                                                            was caused to the appellant by conduct which cannot
The appellant claims that the Court should:                                 be characterised as an act adversely affecting an
                                                                            official because they produce no legal effects. This is
Ð declare the appeal admissible and well-founded,
                                                                            precisely the case with regard to the plea alleging:
and accordingly                                                             infringement of Articles 4 and 29; breach of the duty
                                                                            to have regard for the welfare of officials; misuse of
Ð set aside the contested judgment in Cases T-78/96 and                     powers; inadequate statement of reasons.
     T-170/96,
Ð grant the form of order sought at first instance,
Ð order the Commission to pay the costs in their
     entirety.
                                                                        Reference for a preliminary ruling by the Divisional
Pleas in law and main arguments adduced in support:                     Court, Queen's Bench Division, by order of that Court of
                                                                        14 July 1998, in the Case of the Queen against (1)
(Case T-78/96)                                                          Minister for Agriculture, Fisheries and Food, (2) Secretary
                                                                        of State for the Environment, ex parte: Monsanto plc, and
Ð irregularity of the proceedings: the Court of First                                      I Pi Ci SpA, Intervener
     Instance misinterpreted the facts submitted before it                                    (Case C-306/98)
     and failed to take into account evidence adduced and
     offered to be adduced by the appellant,                                                    (98/C 299/42)
Ð the Court of First Instance restricted the rights of the
     defence,                                                           Reference has been made to the Court of Justice of the
                                                                        European Communities by an order of the Divisional
Ð contradictory and inadequate grounds of the judgment                  Court, Queen's Bench Division, of 14 July 1998, which
     appealed against as a result of incorrect findings of              was received at the Court Registry on 4 August 1998, for
     facts,                                                             a preliminary ruling in the Case of The Queen against (1)