CELEX: C1996/095/17
Language: en
Date: 1996-03-30 00:00:00
Title: Reference for a preliminary ruling from the Bundesverwaltungsgericht by order of that court of 24 November 1995 in the administrative case of Faik Günaydin, Hatice Günaydin and the minor children Günes Günaydin and Seda Günaydin v. Freistaat Bayern (Case C-36/96)

No C 95/ 10            EN                 Official Journal of the European Communities                                    30 . 3 . 96
( Rome District Magistrate's Court, Tivoli Division ) of             Reference for a preliminary ruling from the
24 January 1996, which was received at the Court Registry            Bundesverwaltungsgericht by order of that court of
on 9 February 1996, for a preliminary ruling in criminal             24 November 1995 in the administrative case of Faik
proceedings against Maria Paolantoni .                               Günaydin, Hatice Günaydin and the minor children Günes
                                                                           Günaydin and Seda Günaydin v. Freistaat Bayern
The questions referred by the Pretura Circondariale di                                        Case C-36/96 )
Roma — Sezione Distaccata di Tivoli to the Court of Justice
for a preliminary ruling are identical with those in Case                                     ( 96/C 95/ 17 )
C-58/95 ( M.
                                                                     Reference has been made to the Court of Justice of the
                                                                     European Communities by an order of the First Senate of the
(!) OJ No C 119 , 13 . 5 . 1995 , p . 6 .                            Bundesverwaltungsgericht ( Federal Administrative Court)
                                                                     of 24 November 1995 , which was received at the Court
                                                                     Registry on 12 February 1996, for a preliminary ruling
                                                                     in the administrative case of Faik Günaydin, Hatice
                                                                     Günaydin and the minor children Günes Günaydin and
                                                                     Seda Günaydin v. Freistaat Bayern, on the following
Action brought on 9 February 1996 by the Commission of               questions :
  the European Communities against the Italian Republic
                         ( Case C-35/96 )                            1 . is a Turkish worker within the meaning of Article 6(1 )
                           ( 96/C 95/16 )                                 of Decision No 1 /80 of the EEC-Turkey Association
                                                                          Council on the development of the Association
                                                                          ('Decision No 1 /80') duly registered as belonging to the
An action against the Italian Republic was brought before                 labour force of a Member State and is he legally
the Court of Justice of the European Communities on                      employed there if he has been permitted to be employed
9 February 1996 by the Commission of the European                         by an employer in the Member State only temporarily
Communities, represented by Enrico Traversa , of its Legal                and only for the purpose of preparing for work with a
Service, acting as Agent, with an address for service in                  subsidiary company of his employer in Turkey ?
Luxembourg at the office of Carlos Gomez de la Cruz, of its
Legal Service, Wagner Centre, Kirchberg.                                 If the answer to Question 1 is yes:
                                                                     2 . can a claim under Article 6 ( 1 ) of Decision No 1/80 be
The applicant claims that the Court should :                              opposed as an abuse of law if the Turkish worker has
                                                                         expressly declared his intention of returning to Turkey
1 . declare that by adopting and maintaining in force a law              after preparation for the work there and the authority
     which, in granting the relative decision-making power,               dealing with foreigners has permitted him to reside
     requires the Consiglio Nazionale degli Spedizionieri                 in the country temporarily only in view of that
     Doganali ( CNSD ) to adopt a decision by an association             declaration ?
     of undertakings contrary to Article 85 of the Treaty
     establishing the European Community in that it fixes a
     compulsory tariff for all customs agents, the Italian
     Republic has failed to fulfil its obligations under
     Articles 5 and 85 of the Treaty;                                References for a preliminary ruling by the Tribunal
                                                                     d'Instance, Paris VII, by judgments of that court of
2 . order the Italian Republic to pay the costs .                    30 January 1996 in the cases of the companies Sodiprem,
                                                                     Sodiac and Sovim ( C-37/96 ) and Roger Albert SA
Pleas in law and main arguments adduced in support:                      ( C-38/96 ) against Direction Generale des Douanes
                                                                                     ( Cases C-37/96 and C-38/96 )
By Decision 93/438/EEC ( l ) of 30 June 1993 , the                                            ( 96/C 95/18 )
Commission found that the tariff adopted by the CNSD at
its meeting on 21 March 1988 constitutes an infringement             Two references have been made to the Court ofJustice of the
of Article 85 ( 1 ) of the Treaty .                                  European Communities by judgments of the Tribunal
The Commission also found that the direct basis for the
                                                                     d'Instance ( District Court), Paris VII, of 30 January 1996 ,
                                                                     which were received at the Court Registry on 12 February
CNSD decision of 21 March 1988 , which hinders
                                                                     1996 , for a preliminary ruling in the cases of the companies
competition in that it fixes a compulsory tariff for all             Sodiprem, Sodiac and Sovim ( C-37/96 ) and Roger Albert SA
customs agents, is Italian Law No 1612/1960 which                    ( C-38/96 ) against the Direction Generate des Douanes on
provides for the adoption by the CNSD of a decision by an            the following question:
association of undertakings prohibited by Article 85 ( 1 ) of
the Treaty. The Commission has therefore concluded that              do the rules laid down by Law 92-676 of 17 July 1992
Law No 1612/1969 constitutes an infringement of Article 5            concerning dock dues and implementing Decision 89/688 of
of the Treaty in relation to Article 85 .                            the Council of the European Communities of 22 December
                                                                     1 989 ( 1 ) have the effect of replacing a charge having
(') OJ No L 203 , 30 . 6 . 1993 , p . 27.                            equivalent effect to a customs duty on imports, as
                                                                     considered in the preliminary ruling of 16 July 1992 in
                                                                     Legros, and of establishing — by contrast with the dock