CELEX: C1998/166/05
Language: en
Date: 1998-05-30 00:00:00
Title: References for a preliminary ruling by the Arbeitsgericht, Wiesbaden, by orders of that court of 27 February 1998 in the cases of Urlaubs- und Lohnausgleichskasse der Bauwirtschaft against Duarte dos Santos Sousa (C-68/98), Urlaubs- und Lohnausgleichskasse der Bauwirtschaft against Santos & Kewitz Construções Lda (C-69/98), Portugaia Construções Lda against Urlaubs- und Lohnausgleichskasse der Bauwirtschaft (C-70/98) and Engil Sociedade de Construção Civil S.A. against Urlaubs- und Lohnausgleichskasse der Bauwirtschaft (C-71/98) (Cases C-68/98 to C-71/98)

30.5.98                EN                Official Journal of the European Communities                                        C 166/3
    birds or any disturbances affecting the birds, in breach             mentioned in Annex I of the directive and for
    of Directive 79/409/EEC (1), in particular Articles 2                migratory birds are inadequate to enable those birds to
    and 4 thereof, and Directive 92/43/EEC (2) the                       continue to exist and to reproduce. The Commission
    Kingdom of the Netherlands has failed to fulfil its                  consequently      considers     that    the    Netherlands
    obligations under the Treaty; and                                    authorities have failed to comply with Article 4(1) and
                                                                         (2).
Ð order the Kingdom of the Netherlands to pay the                   Ð In accordance with Article 6(2) of Directive 92/43/
    costs.                                                               EEC on habitats, the Netherlands must take
                                                                         appropriate steps to avoid, in the special areas of
                                                                         conservation, the deterioration of natural habitats and
Pleas in law and main arguments:
                                                                         the habitats of species as well as disturbance of the
                                                                         species for which the areas have been designated,
Ð a general obligation is imposed on the Member States                   insofar as such disturbance could be significant in
    by Article 2 of Directive 79/409/EEC on wild birds to                relation to the objectives of the directive. According to
    take the requisite measures to maintain the bird                     Article 7 of that directive, that obligation replaces the
    population at a level which corresponds to ecological,               obligations arising under the first sentence of
    scientific and cultural requirements, or to adapt the                Article 4(4) of Directive 79/409/EEC and thus applies
    population to that level. In so doing Member States                  to the Waddenzee. The policy implemented by the
    may take account of economic and recreational                        Netherlands Government results in a deterioration of
    requirements. The severe decline in certain types of                 the quality of the habitat of the species of birds
    bird which feed on cockles or mussels or have an                     concerned in the special conservation area of the
    effect on fishing of shellfish in some other way is an               Waddenzee; the disturbances for those species are
    indication that the Netherlands policy does not satisfy              significant in relation to the objectives of the directive.
    that general requirement, since the measures necessary               The Commission therefore considers that the
    to maintain the bird population at a satisfactory level              Netherlands authorities have failed to comply with
    are still lacking.                                                   Article 6(2) of the directive on habitats.
                                                                    (1) Directive 79/409/EEC of the Council of 2 April 1979 on the
    It appears from the recommendations from various                    conservation of wild birds, OJ L 103 of 2.4.1979, p. 1.
    parties that even bearing in mind the economic                  (2) Directive 92/43/EEC of the Council of 21 May 1992 on the
    importance of shellfish fishing, it is none the less                conservation of natural habitats and of wild fauna and flora,
    possible to restrict the environmental effects to a                 OJ L 206 of 21.5.1992, p. 7.
    greater extent than is attainable with the current
    policy of the Netherlands Government. The
    possibilities of taking account of the interests of the
    fishing industry in a manner which has less effect on
    the environment have clearly not been studied by the
    Netherlands authorities. The Commission concludes               References for a preliminary ruling by the Arbeitsgericht,
    therefore that the Netherlands Government has not               Wiesbaden, by orders of that court of 27 February 1998
    complied with Article 2 of the directive on wild birds.         in the cases of Urlaubs- und Lohnausgleichskasse der Bau-
                                                                    wirtschaft against Duarte dos Santos Sousa (C-68/98),
                                                                    Urlaubs- und Lohnausgleichskasse der Bauwirtschaft
    Article 4 of the directive on wild birds does not               against Santos & Kewitz ConstrucËoÄes Lda (C-69/98),
    contain any provision of the same kind as that in               Portugaia ConstrucËoÄes Lda against Urlaubs- und Lohnaus-
    Article 2 which makes it possible to take account,              gleichskasse der Bauwirtschaft (C-70/98) and Engil
    inter alia, of economic requirements. The Netherlands           Sociedade de ConstrucËaÄo Civil S.A. against Urlaubs- und
    Waddenzee, which is designated a special protection                   Lohnausgleichskasse der Bauwirtschaft (C-71/98)
    area for the purposes of the directive is a wet zone of                           (Cases C-68/98 to C-71/98)
    international importance for water birds, in respect of
    which the Netherlands therefore bears a particular                                        (98/C 166/05)
    responsibility. According to Article 4(1) the
    Netherlands is required to adopt special conservation           Reference has been made to the Court of Justice of the
    measures in respect of the species mentioned in                 European Communities by orders of the Arbeitsgericht
    Annex I in order to ensure the survival and                     (Labour Court), Wiesbaden, of 27 February 1998,
    reproduction of those species. Certain birds mentioned          received at the Court Registry on 13 March 1998, for a
    in Annex I can be found in the Netherlands part of the          preliminary ruling in the cases of Urlaubs- und Lohnaus-
    Waddenzee and nest there. Similar measures must be              gleichskasse der Bauwirtschaft (Holiday and Wage
    taken for regularly occuring migratory species not              Equalisation Fund of the Construction Industry) against
    listed in Annex I as regards their breeding, moulting           Duarte dos Santos Sousa (C-68/98), Urlaubs- und Lohn-
    and wintering areas and staging posts along their               ausgleichskasse der Bauwirtschaft against Santos &
    migration routes. A number of species of migratory              Kewitz ConstrucËoÄes Lda (C-69/98), Portugaia ConstrucËoÄes
    birds regularly call in at the Netherlands part of the          Lda against Urlaubs- und Lohnausgleichskasse der Bau-
    Waddenzee. The Commission concludes from the                    wirtschaft (C-70/98) and Engil Sociedade de ConstrucËaÄo
    information available to it that the protective measures        Civil S.A. against Urlaubs- und Lohnausgleichskasse der
    adopted by the Netherlands authorities for the birds            Bauwirtschaft (C-71/98) on the following questions:
 ---pagebreak--- C 166/4             EN                 Official Journal of the European Communities                                     30.5.98
1. Are Articles 48, 59 and 60 of the EC Treaty to be                  employers resident in Germany which in certain cases
   interpreted as infringed by a provision of national law            results in different businesses falling within the field of
   Ð the first sentence of Paragraph 1(3) of the Arbeit-              application of the generally binding collective
   nehmerentsendegesetz (Law on the Posting of                        agreement?
   Workers) Ð which extends the application of
   provisions of collective agreements which have been
   declared generally binding concerning the collection of        4. Is Article 3(1)(b) of Directive 96/71/EC (2) of the
   contributions and the grant of benefits in connection              European Parliament and of the Council of
   with workers' holiday entitlements by joint bodies of              16 December 1996 concerning the posting of workers
   parties to collective agreements, and thus the                     in the framework of the provision of services to be
   provisions of those agreements concerning the scheme               interpreted as in any event, having regard to the
   to be complied with in that regard, to employers                   correct interpretation of Articles 48, 59 and 60 of the
   resident abroad and their workers who have been                    EC Treaty, neither requiring nor permitting the rules at
   posted to the area within which those collective                   issue in Questions 1, 2 and 3?
   agreements apply?
                                                                  (1) OJ L 307 of 13.12.1993, p. 18.
                                                                  (2) OJ L 18 of 21.1.1997, p. 1.
2. Are Articles 48, 59 and 60 of the EC Treaty to be
   interpreted as infringed by the second sentence of
   Paragraph 1(1) and the first sentence of Paragraph 1(3)
   of the Arbeitnehmerentsendegesetz which result in the
   application of provisions of collective agreements
   declared to be generally binding which:
                                                                  Reference for a preliminary ruling by the éstre Landsret
                                                                  by order of 12 March 1998 in the case of DAT-SCHAUB
   (a) provide for a length of leave which exceeds the             a.m.b.a. v Ministeriet for Fùdevarer, Landbrug og Fiskeri
       minimum length of annual leave laid down in                                        (Case C-74/98)
       Council Directive 93/104/EC of 23 November
       1993 (1) concerning certain aspects of the                                          (98/C 166/06)
       organisation of working time; and/or
                                                                  Reference has been made to the Court of Justice of the
   (b) allow employers resident in Germany to claim the           European Communities by order of 12 March 1998 from
       reimbursement of expenditure on holiday pay and            the éstre Landsret (Eastern Regional Court), which was
       holiday allowances from joint bodies of the parties        received at the Court Registry on 17 March 1998, for a
       to the collective agreements whereas, in the case of       preliminary ruling in the case of DAT-SCHAUB a.m.b.a. v
       employers resident abroad, they do not provide for         Ministeriet for Fùdevarer, Landbrug og Fiskeri (Ministry
       such a claim but instead for a direct claim by the         of Food, Agriculture and Fisheries) on the following
       posted workers against the joint bodies of the             question:
       parties to the collective agreements; and/or
                                                                  Having regard to the Cooperation Agreement between the
   (c) in connection with the social fund scheme to be            European Economic Community and the countries parties
       complied with under those collective agreements,           to the Charter of the Cooperation Council for the Arab
       impose on employers resident abroad obligations            States of the Gulf, approved by Council Directive 89/147/
       to provide information to the joint bodies of the          CEE of 20 February 1989 (1), must the term non-member
       parties to the collective agreements whereby the           country' in the second subparagraph of the Article 17(2)
       amount of information to be given exceeds the              of Regulation (CEE) No 3665/87 (2) laying down common
       amount required from employers resident in                 detailed rules for the application of the system of export
       Germany?                                                   refunds on agricultural products be construed as meaning
                                                                  that countries parties to the Charter are treated as one
                                                                  single non-member country, with the result that a product
3. Are Articles 48, 59 and 60 of the EC Treaty to be              which, after processing in the Jebel Ali Free Zone in the
   interpreted as infringed by Paragraph 1(4) of the              United Arab Emirates, is imported into and released for
   Arbeitnehmerentsendegesetz under which Ð for the               free circulation in another of the countries parties to the
   purposes of classifying businesses as covered by a             Charter is to be regarded as having been imported in the
   collective agreement which has been declared generally         unaltered state within the meaning of Article 17 of the
   binding and which, under the first sentence of                 regulation?
   Paragraph 1(3) of that Law, also applies to employers
   resident abroad and their workers who have been                (1) OJ L 54 of 25.2.1989, p. 1.
   posted to the area within which that collective                (2) OJ L 351 of 14.12.1987, p. 1.
   agreement applies Ð all workers posted to Germany,
   but only those workers, are treated as a business,
   while a different definition of a business applies to