CELEX: C2004/035/07
Language: en
Date: 2004-02-07 00:00:00
Title: Case C-507/03: Action brought on 1 December 2003 by the Commission of the European Communities against Ireland

C 35/4                 EN                         Official Journal of the European Union                                          7.2.2004
Reference for a preliminary ruling by the Cour d’arbitrage                      (a)   in the relevant circumstances, was the Appellant a
by judgment of that Court of 29 October 2003 in the case                              ‘taxable person acting as such’ within Art.2(1) of the
       brought by H. Clerens against Walloon Region                                   Sixth Directive when, in the 26 transactions, it
                                                                                      acquired the CPUs from the UK vendors and sold
                                                                                      them to the non-UK purchasers?
                         (Case C-480/03)
                                                                                (b) in the relevant circumstances, was the Appellant
                          (2004/C 35/05)                                              carrying on an ‘economic activity’ within Art.4 of
                                                                                      the Sixth Directive when, in the 26 transactions, it
                                                                                      acquired the CPUs from the UK vendors and sold
                                                                                      them to the non-UK purchasers?
Reference has been made to the Court of Justice of the
European Communities by judgment of the Cour d’arbitrage
                                                                                (c)   in the relevant circumstances, was the acquisition by
of 29 October 2003, received at the Court Registry on
                                                                                      the Appellant, in the 26 transactions, of the CPUs
18 November 2003, for a preliminary ruling in the case
                                                                                      from the UK vendors a ‘supply of goods’ to the
brought by H. Clerens against Walloon Region on the follow-
                                                                                      Appellant within Art.5(1) of the Sixth Directive?
ing questions:
1.    Must Council Directive 79/409/EEC of 2 April on the                       (d) in the relevant circumstances, was the sale by the
      conservation of wild birds (1) be interpreted as not                            Appellant, in the 26 transactions, of the CPUs to the
      authorising Member States to introduce rules which also                         non-UK purchasers a ‘supply of goods’ by the
      apply to birds mentioned in Annex I to the Directive that                       Appellant within Art.5(1) of the Sixth Directive?
      are born and reared in captivity?
                                                                          2.    Do the answers to Question l(a)-(d) above give rise to any
2.    Must that directive be interpreted as authorising Member                  breach of the general principles of Community law (in
      States to lay down rules to protect birds born and reared                 particular, the principles of proportionality and legal
      in captivity only to the extent that those rules apply solely             certainty)?
      to trade in those birds, or may those rules apply to all the
      operations which trade in birds may entail?
(1) OJ L 103 of 25.04.1979, p. 1.
                                                                          Action brought on 1 December 2003 by the Commission
                                                                                  of the European Communities against Ireland
Reference for a preliminary ruling by the High Court of
                                                                                                   (Case C-507/03)
Justice (England & Wales) Chancery Division by order of
that court dated 27 October 2003, in the case of Bond
House Systems Ltd against Commissioners of Customs                                                  (2004/C 35/07)
                            and Excise
                         (Case C-484/03)
                                                                          An action against Ireland was brought before the Court of
                          (2004/C 35/06)                                  Justice of the European Communities on 1 December 2003 by
                                                                          the Commission of the European Communities, represented
                                                                          by K. Wiedner, acting as agent, assisted by J. E. Flynn QC,
                                                                          Barrister, with an address for service in Luxembourg.
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice (England & Wales) Chancery Division dated 27 October              The Applicant claims that the Court should:
2003, which was received at the Court Registry on 19 Novem-
ber 2003, for a preliminary ruling in the case of Bond House
Systems Ltd and Commissioners of Customs and Excise on the                1.    declare that, in deciding to entrust the provision of
following questions:                                                            services to An Post without undertaking any prior
                                                                                advertising, Ireland has failed to comply with its obli-
1.    Having regard to the general principles of EC law (in                     gations under the Treaty; and
      particular, the principles of proportionality and legal
      certainty) and to Article 28 of the EC Treaty:                      2.    order Ireland to pay the Commission’s costs.
 ---pagebreak--- 7.2.2004                EN                          Official Journal of the European Union                                             C 35/5
Pleas in law and main arguments                                             Communities, represented by D. Martin, acting as Agent, with
                                                                            an address for service in Luxembourg.
The Commission considers that the fact that the contract at
issue in this case falls within the scope of Council Directive              The Commission of the European Communities claims that
92/50/EEC (1) as amended by European Parliament and Council                 the Court should:
Directive 97/52/EC (2) does not preclude the application of
the principle enunciated in Telaustria (3) deriving from the                1.    declare that, by adopting Article 7(2) and the fifth
fundamental freedoms laid down in the Treaty and the                              subparagraph of Article 19 of the Law of 12 February
application of general principles which are given specific                        1999 setting up parental leave and leave for family
expression in those fundamental freedoms. The obligation on                       reasons, the Grand Duchy of Luxembourg has failed to
Member States to comply with general principles is confirmed,                     fulfil its obligations under Clause 2(1) of Part II of the
within the Directive itself by Article 3(2) (see above), a                        Annex to Council Directive 96/34/EC of 3 June 1996 on
general obligation on contracting authorities to avoid all                        the framework agreement on parental leave concluded by
discrimination between service providers. That obligation is                      UNICE, CEEP and the ETUC (1), as regards:
incumbent on the Irish authorities in respect of Annex 1B
services just as much as in respect of Annex 1A services.                         —     the substitution of maternity leave for parental leave,
                                                                                        and
It is submitted that the Commission’s analysis is the only one
which can be regarded as consistent with the internal market                      —     the date from which individual rights to parental
logic of the Treaty. The Court’s case-law clearly holds that the                        leave are granted;
Treaty provisions on the freedoms of establishment and service              2.    order the Grand Duchy of Luxembourg to pay the costs.
provision impose obligations on Member States in respect of
the award of public contracts outside the scope of the
directives. This applies to types of contracts (such as service
                                                                            Pleas in law and main arguments
concessions) that are not specifically covered and also to
contracts of types which are covered but where the value falls
below the thresholds set in the various directives.                         1. Maternity leave has a completely different purpose from
                                                                            that of parental leave. Moreover, Clause 2(1) of the framework
That being so, the Commission submits that it would run                     agreement expressly provides that parental leave is an individ-
directly counter to the logic of the internal market if, whereas            ual right to leave of at least three months’ duration. The
Community law requires an appropriate level of advertising in               obligatory termination of parental leave when maternity leave
such situations even if the contract falls outside the scope of             begins is therefore not compatible with that provision of the
the directives because of its structure or value, it were                   Annex to Directive 96/34. The woman whose maternity leave
nevertheless open to Member States not to advertise in any                  begins during her parental leave must, in the light of the
way contracts (whose value is above the financial thresholds)               individual right to parental leave of at least three months
solely on the grounds that the services to which they relate fall           conferred on her by Clause 2(1) of the framework agreement,
within the scope of Annex 1B of the Directive.                              be able to defer the portion of her parental leave which she
                                                                            has not been able to take because of her maternity leave.
                                                                            2. By limiting its application to children born or adopted
(1) Directive of 18 June 1992 relating to the coordination of               after 31 December 1998, the Luxembourg authorities have
    procedures for the award of public service contracts (OJ L 209,         added a condition which is not authorised by the Directive.
    24.07.1992, p. 1).
(2) Directive of 13 October 1997 amending Directives 92/50/
    EEC, 93/36/EEC and 93/37/EEC concerning the coordination of             (1) OJ L 145 of 19.06.1996, p. 4.
    procedures for the award of public service contracts, public supply
    contracts and public works contracts respectively (OJ L 328,
    28.11.1997, p. 1).
(3) Case C-324/98, Telaustria Verlags GmbH v Telekom Austria AG,
    ECR[2000], p.I-10745.
                                                                            Action brought on 28 January 2004 by the Commission
                                                                            of the European Communities against the Council of the
                                                                                                     European Union
Action brought on 12 December 2003 by the Commission                                                  (Case C-27/04)
of the European Communities against the Grand Duchy
                         of Luxembourg                                                                (2004/C 35/09)
                         (Case C-519/03)
                          (2004/C 35/08)                                    An action against the Council of the European Union was
                                                                            brought before the Court of Justice of the European Communi-
                                                                            ties on 28 January 2004 by the Commission of the European
An action against the Grand Duchy of Luxembourg was                         Communities, represented by M. Petite, A. van Solinge and
brought before the Court of Justice of the European Communi-                P. Aalto, acting as Agents, with an address for service in
ties on 12 December 2003 by the Commission of the European                  Luxembourg.