CELEX: C1996/247/11
Language: en
Date: 1996-08-24 00:00:00
Title: Reference for a preliminary ruling from the Bundesarbeitsgericht by order of that court of 21 March 1996 in the case of E. F. Liebelt GmbH & Co KG v. Marianne Seidel (Case C-204/96)

No C 247/6               EN                      Official Journal of the European Communities                                       24 . 8 . 96
corresponding to the references as at 30 March 1992                         2 . In the abovementioned Long-term Plan , the principles of
multiplied by the 2,15 % rate of refund , this may only take                      self-sufficiency and proximity find specific expression in
place in parallel with an across-the-board reduction in                           the pursuit of the best possible quality method of
reference quantities of the order of 2,35 % . As a result of                      disposal ( including recovery ) and continuity of disposal .
that operation , most producers who were previously                               Does this constitute a correct implementation of those
entitled to the removal of the reduction of 2,15 % occurring                      principles ?
during the eighth period will ultimately be faced not with the
reconstitution of their reference quantities but with their                 3 . ( a ) In so far as the criteria laid down in the Long-term
further reduction . It is clear from the wording of texts                               Plan for objecting to the export of waste for
published by the Ministry of Agriculture that the reduction                             recovery are in themselves acceptable, is this then a
operation was designed as a correcting mechanism to                                     case of a measure having equivalent effect within
neutralize the intended effect of Article 2 of Regulation                               the meaning of Article 34 of the EC Treaty, and is
No 1637/91 , that is to say , the reconstitution , to a level of                        there any justification for it ?
100% , of the reference quantities of most producers .
                                                                                  ( b ) In that context, if the principles of self-sufficiency
                                                                                        and proximity may be applied in regard to waste
(') OJ No L 150 , 15 . 6 . 1991 , p . 30 .                                              intended for recovery , does it make any difference
( 2 ) OJ , English Special Edition 1968 ( I ), p . 176 .                                whether those principles are applied primarily
                                                                                        within the Community as a whole or exclusively at
                                                                                        national level ?
                                                                            4 . Are the exclusive rights to incinerate dangerous waste
                                                                                  conferred by the Netherlands authority on AVR Chemie
                                                                                  CV in Sectoral Plan 10 of Part II of the Long-term Plan
Reference for a preliminary ruling from the Nederlandse                           compatible with Article 90 ( 1 ) and ( 2 ) in conjunction
Raad van State, by order of that court of 23 April 1996 in                        with Article 86 of the EC Treaty , having regard to the
the case of 1 . Chemische Afvalstoffen Dusseldorp BV, 2 .                         reasons given for such conferral in the Long-term
Factron Technik GmbH and 3 . Dusseldorp Lichtenvoorde                             Plan ?
BV v. Minister for Housing, Town and Country Planning
                          and Conservation                                  (') O ) No L 30 , 1993 , p . 1 .
                           ( Case C-203 /96 )                               ( 2 ) OJ No L 194 , 1975 , p . 47 .
                                                                            C ) OJ No L 78 , 1991 , p . 32 .
                             ( 96/C 247/ 10 )
Reference has been made to the Court of Justice of the
European Communities by an order of the Nederlandse
Raad van State ( Council of State of the Netherlands ) of
23 April 1 996 , which was received at the Court Registry on                Reference for a preliminary ruling from the
14 June 1996 , for a preliminary ruling in the case of 1 .                  Bundesarbeitsgericht by order of that court of 21 March
Chemische Afvalstoffen Dusseldorp BV, 2 . Factron Technik                   1996 in the case of E. F. Liebelt GmbH & Co KG v.
GmbH and 3 . Dusseldorp Lichtenvoorde BV v. Minister for                                              Marianne Seidel
Housing, Town and Country Planning and Conservation on                                               ( Case C-204/96 )
the following questions:
                                                                                                        ( 96/C 247/ 11 )
1 . ( a ) Having regard to the scheme of Regulation ( EEC )
            No 259/93 ( 1 ) of 1 February 1993 on the                       Reference has been made to the Court of Justice of the
            supervision and control of shipments of wastes                  European Communities by an order of the Eighth Senate of
            within , into and out of the European Community                 the Bundesarbeitsgericht ( Federal Labour Court ) of
            and Directive 75/442/EFC ( 2 ) of 15 July 1975 on               21 March 1996 , which was received at the Court Registry
            waste , as amended by Directive 91 / 156/EEC ( '),              on 1 7 June 1 996 , for a preliminary ruling in the case of E. F.
            read in conjunction with each other, do the                     Liebelt GmbH & Co KG v. Marianne Seidel on the
            principles of self-sufficiency and proximity apply              following questions :
            solely to the shipment between Member States of
            waste for disposal or also to waste for recovery ?              1 . Is there an undertaking, business or part of a business
                                                                                  within the meaning of Council Directive 77/ 1 87/EEC of
      ( b ) If the Court of Justice takes the view that                           14 February 1977 on the approximation of the laws of
            Regulation ( EEC ) No 259/93 and Directive                            the Member States relating to the safeguarding of
            75/442/EEC do not provide a basis for the                             employees' rights in the event of transfers of
            application of the principles of self-sufficiency and                 undertakings, businesses or parts of businesses ( '), on
            proximity to the shipment between Member States                       the part of the awarder of the contract or the contractor,
            of waste for recovery , can Article 130t of the EC                    if an employer does not himself perform certain
            Treaty then provide a basis for rules such as those                   activities which can be carried out only in his business
            contained in the relevant part of the Long-term Plan                  but has them done , on the basis of a service contract or
            for Disposal of Dangerous Waste of June 1993                          contract for services , by a third party who engages the
            drawn up by the Netherlands Government ?                              necessary employees and is their employer ?
 ---pagebreak--- 24 . 8 . 96           EN                  Official Journal of the European Communities                                No C 247/7
2 . Does the answer to Question 1 depend on whether the              The Commission claims that the Court should :
     undertaking which is awarded the contract, as well as
     pursuing its activity on the awarder's premises, is still       — declare that by failing, within the prescribed time-limit,
     using assets which have been made available to it by the             to enact the laws, regulations and administrative
     awarder ?                                                            measures necessary to comply with Council Directive
                                                                          92/42/EEC of 21 May 1 992 ( 1 ) on efficiency
3 . May it depend on what type the assets made available by               requirements for new hot-water boilers fired with liquid
     the awarder of the contract are ? Can it be decisive                 or gaseous fuels, the Kingdom of Belgium has failed to
     whether fully equipped units ( for example, a functioning            fulfil its obligations under the Treaty ,
     kitchen ) or assets of a subsidiary nature ( for example,
     consumables ) are made available ?                              — order the Kingdom of Belgium to pay the costs .
4 . Is it necessary, for there to be a part of a business , that
     the contractor forms a specific business organization to        Pleas in laiv and main arguments adduced in support:
     perform the contract ?
                                                                     The binding nature of the third paragraph of Article 1 89 of
5 . May it be relevant whether the awarder of the contract           the EC Treaty requires Member States to adopt the
     has had influence on the organization of the contractor         necessary measures to implement directives which are
     and in particular on the number and selection of the            addressed to them before the expiry of the period allotted to
     employees employed to perform the contract ?                    them for that purpose . The period in question expired on
                                                                      1 January 1993 , without the Kingdom of Belgium having
6 . May the existence of the part of a business and with the         adopted the necessary measures .
     contract for services, because the previous contractor no
     longer has anything to carry out as a business ?                (') OJ No L 167, 1992 , p . 17 .
7. Is there a legal transfer of an undertaking, business or
     part of a business within the meaning of the Directive if
     the hospital authority terminates the contract for
     services which it has concluded with a cleaning
     undertaking and on the basis of a new invitation to
     tender concludes a new contract for services with
                                                                     Action brought on 19 June 1996 by the Commission of the
     another cleaning undertaking for the performance of the
                                                                         European Communities against the Italian Republic
     cleaning work in the hospital ? May there in that case be
     a legal transfer even if no tangible and no intangible                                   ( Case C-207/96 )
     assets are transferred ?                                                                   ( 96/C 247/ 13 )
8 . Does it depend on whether the new invitation to tender
     has taken place because the previous contractor did not         An action against the Italian Republic was brought before
    perform the work properly with his employees ( poor              the Court of Justice of the European Communities on
     performance ) or whether the new invitation to tender is        19 June 1996 by the Commission of the European
     intended to achieve a reduction of costs ?                      Communities , represented by Marie Wolfcarius of its Legal
                                                                     Service and Enrico Altieri , Magistrato di Cassazione
                                                                     seconded to the Legal Service, acting as Agents, with an
(') OJ No L 61 , 1977, p . 26 .                                     address for service in Luxembourg at the office of Carlos
                                                                     Gomez de la Cruz, Wagner Centre, Kirchberg .
                                                                    The applicant claims that the Court should :
                                                                     1 . declare that, by not adopting within the prescribed
Action brought on 18 June 1996 by the Commission of the                   period the laws, regulations and administrative
European Communities against the Kingdom of Belgium                       provisions necessary to comply with Council Directive
                        Case C-205 /96 )                                  76/207/EEC ( 1 ) of 9 February 1976 on the
                                                                          implementation of the principle of equal treatment for
                         ( 96/C 247/ 12 )                                 men and women as regards access to employment,
                                                                          vocational training and promotion , and working
An action against the Kingdom of Belgium was brought                      conditions, and by maintaining in force within its own
before the Court of Justice of the European Communities on                legal system rules prohibiting night-work for women,
18 June 1996 by the Commission of the European                           contrary to Article 5 of that Directive , the Italian
Communities, represented by R. Wainwright and J.-F .                      Republic has failed to fulfil its obligations under
Pasquier, acting as Agents, with an address for service in                Community law ;
Luxembourg at the office of C. Gomez de la Cruz, a member
of the Commission 's legal service, Wagner Centre ,                 2 . order the Italian Republic to pay the costs of the
Kirchberg .                                                               proceedings .