CELEX: C2003/055/16
Language: en
Date: 2003-03-08 00:00:00
Title: Case C-458/02: Action brought on 18 December 2002 by the Commission of the European Communities against the United Kingdom

C 55/8                EN                        Official Journal of the European Union                                            8.3.2003
Reference for a preliminary ruling by the Bundesfinanz-                 Action brought on 18 December 2002 by the Commission
hof by order of that Court of 29 October 2002 in the case               of the European Communities against the United
of Hauptzollamt Bremen against ITG GmbH Inter-                                                       Kingdom
                      nationale Spedition
                                                                                                 (Case C-458/02)
                        (Case C-452/02)
                                                                                                  (2003/C 55/16)
                         (2003/C 55/15)
Reference has been made to the Court of Justice of the                  An action against the United Kingdom was brought before the
European Communities by order of the Bundesfinanzhof                    Court of Justice of the European Communities on 18 December
(Federal Finance Court) of 29 October 2002, received at the             2002 by the Commission of the European Communities,
Court Registry on 12 December 2002, for a preliminary ruling            represented by K. Banks, acting as agent, with an address for
in the case of Hauptzollamt Bremen against ITG GmbH                     service in Luxembourg.
Internationale Spedition on the following questions:
1.    Is a customs debt on importation incurred under                   The applicant claims that the Court should:
      Article 203(1) of Regulation (EEC) No 2913/92 ( 1) where,
      contrary to instructions, goods in temporary storage are
      not presented to the original customs authority but to            —     declare that in providing for an exception to the right to
      another customs authority without having been placed                    equitable remuneration for performers and phonogram
      under the Community transit procedure required for their                producers where a phonogram published for commercial
      movement?                                                               purposes, or a reproduction of such phonogram, is used
                                                                              for any communication to the public (the exception
                                                                              concerning any communication to a non-paying audi-
2.    If Question 1 should be answered in the negative: In the                ence), the United Kingdom has failed to implement
      circumstances described in Question 1 is there a non-                   correctly Article 8(2) of Council Directive 92/100/EEC (1)
      fulfilment of an obligation that could result in the                    on rental right and lending right and on certain rights
      incurrence of a customs debt on importation under                       related to copyright in the field of intellectual property;
      Article 204(1)(a) of Regulation (EEC) No 2913/92?
                                                                        —     order the United Kingdom to pay the costs of this action.
3.    If Question 2 should be answered in the affirmative:
      (a)   Should Article 859, point 5, of Regulation (EEC)
            No 2454/93 (2) be interpreted as referring only to
            an unauthorised movement of goods that could                Pleas in law and main arguments
            have been authorised by the customs office, or does
            it mean any movement of goods at all?
      (b) Should Article 859, point 5, of Regulation (EEC)              The only permissible exceptions to both the producers’ and
            No 2454/93 be interpreted as meaning that the               performers’ right to obtain equitable remuneration under
            condition laid down in that provision, that the             Article 8 of Directive 92/100/EEC are provided for by
            goods in temporary storage can be presented to the          Article 10 of the directive. In the present context, the United
            customs authorities at their request, is fulfilled only     Kingdom can only rely upon limitations allowed under
            if the goods are presented again to the customs             Article 10(2) because the exceptions provided for under
            office where they were originally presented, or is the      paragraph 1 of the said provision are not pertinent.
            condition fulfilled even if the goods are presented
            again to another customs office in the same town
            which comes under the organisation of a different
                                                                        As to the application of the limitations allowed under
            customs authority?
                                                                        Article 10(2), it must be borne in mind that, pursuant to this
                                                                        provision, Member States may only provide for limitations
                                                                        with regard to the protection of performers to the extent that
( 1) OJ L 302, p. 1.                                                    they may lawfully do in connection with the protection of
( 2) OJ L 253, p. 1.                                                    copyright in literary and artistic works. It follows, however,
                                                                        from Article 11 bis (2) of the Berne Convention that domestic
                                                                        legislation shall not in any circumstances be prejudicial to the
                                                                        author’s right to obtain equitable remuneration.
 ---pagebreak--- 8.3.2003               EN                     Official Journal of the European Union                                            C 55/9
Since, under Article 10(2) of the directive, producers and                  —     fails to lay down a maximum period of 7 years
performers must be treated on an equal footing with authors,                      for the selection of suppliers of groundlhandling
the United Kingdom is not entitled to exclude the right to                        services, in accordance with Article 11(1)(d), of the
claim equitable remuneration when a broadcast or cable                            directive in question;
programme containing a recording is seen or heard by a non-
paying audience as set out in paragraph 18 of Schedule 2 of
the 1988 Copyright, Designs and Patents Act.                                —     introduces, by Article 14, a social measure which is
                                                                                  not compatible with Article 18 of the directive;
In the view of the Commission, the criterion of a non-paying                —     provides, at Article 20, transitional provisions not
audience as defined in the aforementioned provision goes                          permissible under the directive;
much further than the exceptions to the right permitted under
Article 10 of the directive.
                                                                      (b)   order the Italian Republic to pay the costs.
Therefore, the Commission submits that by providing for
exceptions from the right to equitable remuneration granted
to performers where a broadcast or communication to the
public of protected subject matter is seen or heard by a non-
paying audience, the United Kingdom has failed to fulfil the          Pleas in law and main arguments
requirements of Community law and in particular of
Article 8(2) of Directive 92/100/EEC.
                                                                      Article 11 of Legislative Decree No 18 of 13 January 1999
( 1) OJ L 346, 27.11.1992, p. 61.                                     does not lay down the maximum period for which suppliers
                                                                      of services are selected at airports in which access to the
                                                                      market is by means of a selection procedure. Article 11(1)(d)
                                                                      of Directive 96/67/EC expressly provides that the maximum
                                                                      period is fixed at 7 years. The Commission therefore takes
                                                                      the view that the absence of a limit to the duration of
                                                                      groundhandling contracts at Italian airports is incompatible
                                                                      with the requirements laid down by the directive.
Action brought on 19 December 2002 by the Commission
of the European Communities against the Italian Republic              Article 18 of Directive 96/67/EC allows Member States to take
                                                                      the necessary measures to ensure protection of the rights of
                                                                      workers. However, such measures must not affect the appli-
                         (Case C-460/02)                              cation of the directive itself and must not obstruct other
                                                                      provisions of Community law. In other words, the protection
                                                                      of the rights of workers is indeed permissible under Article 18
                          (2003/C 55/17)                              of the directive provided that it does not run counter to the
                                                                      effective application of the directive so far as concerns
                                                                      groundhandling services. Article 14(1) of Legislative Decree
                                                                      No 18/99 lays down the objective of adopting measures to
                                                                      protect the number of posts of staff working for the previous
                                                                      service supplier and continuing employment. The second
An action against the Italian Republic was brought before the         paragraph of the article in question thus contains the obligation
Court of Justice of the European Communities on 19 December           to transfer staff any time there is a ‘transfer of business’
2002 by the Commission of the European Communities,                   affecting one or more categories of groundhandling services
represented by Mikko Huttunen and Antonio Aresu, acting as            under Annex A and B. Such a provision manifestly exceeds the
Agents.                                                               protection already guaranteed by Council Directive 77/187/
                                                                      EEC of 14 February 1977 ( 2) on the approximation of the laws
                                                                      of the Member States relating to the safeguarding of employees’
The applicant claims that the Court should :                          rights in the event of transfers of undertakings, businesses or
                                                                      parts of businesses, as amended by Council Directive 98/50/
                                                                      EC (3) and codified by Council Directive 2001/23/EC ( 4) of
(a)   Declare that the Italian Republic has failed to fulfil          12 March 2001. Accordingly, the Commission takes the view
      its obligations under Council Directive 96/67/EC ( 1) of        that Article 14 of Legislative Decree No 18/99 goes beyond
      15 October 1996 on access to the groundhandling                 what may be considered to be permissible measures to
      market at Community airports inasmuch as Legislative            guarantee the protection of the rights of workers under
      Decree No 18 of 13 January 1999                                 Article 18 of Directive 96/67/EC.