Proceedings of the court of justice and the Court of first instance of the european Communities 26 to 30 October 1998

Transcription

1 J/98/26 Proceedings of the court of justice and the Court of first instance of the european Communities 26 to 30 October 1998 I. JUDGMENTS Court of Justice Case C-411/96 Margaret Boyle and Others v Equal Opportunities Commission Social policy Case C-364/97 Commission of the European Communities v Ireland Social policy Case C-51/97 Réunion Européenne SA and Others v Spliethoff's Bevrachtingskantoor BV and Capitaine Commandant le Navire 'Alblasgracht V002 Judgments Convention/Enforcement of judgments Case C-4/97 Manifattura Italiana Nonwoven SpA v Direzione Regionale delle Entrate per la Toscana Taxation Joined Cases C-31/97 and C-32/97 Fuerzas Eléctricas de Catalunya SA (FECSA) and Autopistas Concesionaria Española SA v Departament d'economía and Finances de la Generalitat de Catalunya Taxation Case C-152/97 Abbruzzi Gas SpA (Agas) v Amministrazione Tributaria di Milano Taxation

2 Case C-230/97 Ibiyinka Awoyemi Freedom of movement for persons Case C-410/97 Commission of the European Communities v Grand Duchy of Luxembourg Social policy Case C-185/96 Commission of the European Communities v Hellenic Republic Freedom of movement for persons Case C-375/96 Galileo Zaninotto v Ispettorato Centrale Repressione Frodi - Ufficio di Conegliano - Ministero delle Risorse Agricole, Alimentari and Forestali Agriculture Case C-114/97 Commission of the European Communities v Kingdom of Spain Freedom of movement for persons Joined Cases C-193/97 and C-194/97 Manuel de Castro Freitas, Raymond Escallier v Ministre des Classes Moyennes et du Tourisme Freedom of movement for persons CourtofFirstInstance Case T-13/96 TEAM Srl v Commission of the European Communities External relations II. OPINIONS Case C-342/97 Lloyd Schuhfabrik Meyer & Co. GmbH v Klijsen Handel B.V.

3 Joined Cases C-395/96 P and C-396/96 P Compagnie Maritime Belge SA and Dafra-Lines A/S v Commission of the European Communities Case C-366/97 Massimo Romanelli and Paolo Romanelli III. NEW CASES Court of Justice CourtofFirstInstance 1. JUDGMENTS Court of Justice Case C-411/96 Margaret Boyle and Others v Equal Opportunities Commission Social policy 27 October 1998 Preliminary ruling (Equal pay and equal treatment for men and women Maternity leave Rights of pregnant women in respect of sick leave, annual leave and the accrual of pension rights) (Full Court) By order of 15 October 1996, received at the Court on 23 December 1996, the Industrial Tribunal, Manchester, referred to the Court for a preliminary ruling five questions on the interpretation of Article 119 of the EC Treaty, Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (hereinafter 'the equal pay directive ), Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (hereinafter 'the equal treatment directive ) and Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (hereinafter 'Directive 92/85 ). Those questions were raised in proceedings between Mrs Boyle and Others and their employer, the Equal Opportunities Commission (hereinafter 'the EOC ), concerning the Maternity Scheme applied by the latter to its staff.

4 The national legislation The six applicants in the main proceedings are all employees of the EOC of childbearing age. They have completed at least one year's service with their employer, at least three of them have taken maternity leave in the recent past. According to the contract, staff who are unfit to work because of illness are entitled to their full salary for a maximum of six months in any 12 month period. Thereafter, they receive half pay up to a maximum of 12 months in any four-year period. Another clause provides that any leave taken without pay reduces the annual leave entitlement by a proportion of the amount of unpaid leave taken. The dispute in the main proceedings centres on the Maternity Scheme. The persons concerned applied to the Industrial Tribunal, Manchester, for a declaration that certain conditions of the scheme are void or unenforceable in so far as they discriminate against female employees and are thus contrary to Community legislation. According to one of those clauses, any member of staff who has rendered at least one year's paid service with the EOC is entitled to three months and one week's maternity leave on full pay for the period of continuous absence before and after childbirth. However, in order to benefit from that right, the employee must state that she intends to return to work in the EOC after childbirth and agree to be liable to repay any payment made during that period (excluding SMP to which she is entitled in any event), should she fail to return. According to another contested clause of the Maternity Scheme, a member of staff who is entitled to paid maternity leave may also qualify for supplementary unpaid maternity leave provided. Finally, the Maternity Scheme states that members of staff who are not entitled to paid leave of absence retain their contractual rights and benefits, except remuneration, during the first 14 weeks of leave. The national court points out that employees on any form of paid leave, apart from paid maternity leave, including sick leave and paid special leave, are not required to agree to repay any part of their salary if they do not return to work after the period of leave. Furthermore, it is agreed that substantially more women employees than men employees take periods of unpaid leave in the course of their careers, largely because they take supplementary maternity leave. The first question By its first question, the national court essentially asks whether the Community legislation precludes a clause in an employment contract which makes the payment, during the period of maternity leave of pay higher than the statutory payments in respect of maternity leave conditional on the woman's undertaking to return to work after the birth of the child. In that respect, it should be noted that it was in view of the risk that the provisions relating to maternity leave would be ineffective if rights connected with the employment contract were not maintained, that the Community legislature provided that 'maintenance of a payment to, and/or entitlement to an adequate allowance for workers to whom the directive applies must be ensured in the case of the maternity leave.

5 The concept of allowance to which that provision refers Directive 92/85 includes all income received by the worker during her maternity leave which is not paid to her by her employer pursuant to the employment relationship. In this respect, the provisions of the directive are intended to ensure that, during her maternity leave, the worker receives an income at least equivalent to the sickness allowance provided for by national social security legislation in the event of a break in her activities on health grounds. Female workers must be guaranteed an income of that level during their maternity leave, irrespective of whether it is paid in the form of an allowance, pay or a combination of the two. However, the Directive is not intended to guarantee her any higher income which the employer may have undertaken to pay her, under the employment contract, should she be on sick leave. It follows that a clause in an employment contract according to which a worker who does not return to work after childbirth is required to repay the difference between the pay received by her during her maternity leave and the statutory payments to which she was entitled in respect of maternity leave is compatible with Directive 92/85 in so far as the level of those payments is not lower than the income which the worker concerned would receive, under the relevant national social security legislation, in the event of a break in her activities on grounds connected with her state of health. A clause in an employment contract which makes the application of a more favourable set of rules than that prescribed by national legislation conditional on the pregnant woman, unlike any worker on sick leave, returning to work after childbirth, failing which she must repay the contractual maternity pay in so far as it exceeds the level of the statutory payments in respect of that leave, therefore does not constitute discrimination on grounds of sex. The second question By its second question, the national court essentially asks whether Community law precludes a clause in an employment contract from requiring an employee who has expressed her intention to commence her maternity leave during the six weeks preceding the expected week of childbirth, and is on sick leave with a pregnancy-related illness immediately before that date and gives birth during the period of sick leave, to bring forward the date on which her paid maternity leave commences either to the beginning of the sixth week preceding the expected week of childbirth or to the beginning of the period of sick leave, whichever is the later. The contested clause applies to the case of a pregnant employee who has expressed her wish to commence her maternity leave during the six weeks preceding the expected week of childbirth. In that respect, Article 8 of Directive 92/85 leaves it open to the Member States to determine the date on which maternity leave is to commence. National legislation may therefore, as here, provide that the period of maternity leave commences with the date notified by the person concerned to her employer as the date on which she intends to commence her period of absence, or the first day after the beginning of the sixth week preceding the expected week of childbirth during which the employee is wholly or partly absent because of pregnancy, should that day fall on an earlier date.

6 The clause to which the second question relates merely reflects the choice made in such national legislation. The third question By its third question, the national court asks whether Community legislation precludes a clause in an employment contract from prohibiting a woman from taking sick leave during the minimum period of 14 weeks' maternity leave to which a female worker is entitled pursuant to Article 8 of Directive 92/85 or any supplementary period of maternity leave granted to her by the employer, unless she elects to return to work and thus terminate her maternity leave. In that respect, although the Member States are required to take the necessary measures to ensure that workers are entitled to a period of maternity leave of at least 14 weeks, those workers may waive that right, with the exception of the two weeks compulsory maternity leave which, in the United Kingdom, commence on the day on which the child is born. In contrast, if a woman becomes ill during the period of maternity leave referred to by Directive 92/85 and places herself under the sick leave arrangements, and that sick leave ends before the expiry of the period of maternity leave, she cannot be deprived of the right to continued enjoyment, after that date, of the maternity leave provided for by the aforementioned provision until the expiry of the minimum period of 14 weeks, that period being calculated from the date on which the maternity leave commenced. The third question need be examined only in so far as the clause of the employment contract referred to therein applies to the supplementary period of maternity leave granted by the employer to female workers. In that respect, the principle of non-discrimination laid down by the equal treatment directive does not require a woman to be able to exercise simultaneously both the right to supplementary maternity leave granted to her by the employer and the right to sick leave. Consequently, in order for a woman on maternity leave to qualify for sick leave, she may be required to terminate the period of supplementary maternity leave granted to her by the employer. Thefourthquestion By its fourth question, the national court essentially seeks to ascertain whether Community law precludes a clause in an employment contract from limiting the period during which annual leave accrues to the minimum period of 14 weeks' maternity leave to which female workers are entitled under the directive. It should be noted that substantially more women than men take periods of unpaid leave during their career because they take supplementary maternity leave, so that, in practice, the clause at issue applies to a greater percentage of women than men. However, the fact that such a clause applies more frequently to women results from the exercise of the right to unpaid maternity leave granted to them by their employers in addition to the period of protection guaranteed by Directive 92/85.

7 The supplementary unpaid maternity leave constitutes a special advantage, over and above the protection provided for by Directive 92/85 and is available only to women, so that the fact that annual leave ceases to accrue during that period of leave cannot amount to less favourable treatment of women. The fifth question By its fifth question, the national court essentially seeks to ascertain whether Community law precludes a clause in an employment contract from limiting, in the context of an occupational scheme wholly financed by the employer, the accrual of pension rights during maternity leave to the period during which the woman receives the pay provided for by that employment contract or national legislation. The accrual of pension rights in the context of an occupational scheme wholly financed by the employer constitutes one of the rights connected with the employment contracts of the workers. Such rights must, in accordance with Directive 92/85, be ensured during the period of maternity leave of at least 14 weeks to which female workers are entitled. Although, in accordance with Directive 92/85, it is open to Member States to make entitlement to pay or the adequate allowance conditional upon the worker concerned fulfilling the conditions of eligibility for such benefits laid down under national legislation, no such possibility exists in respect of rights connected with the employment contract. The accrual of pension rights under an occupational scheme during the period of maternity leave referred to by Directive 92/85 cannot therefore be made conditional upon the woman's receiving the pay provided for by her employment contract or SMP during that period. The Court ruled: '1. Article 119 of the EC Treaty, Article 1 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women and Article 11 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Council Directive 89/391/EEC) do not preclude a clause in an employment contract which makes the payment, during the period of maternity leave referred to by Article 8 of Directive 92/85, of pay higher than the statutory payments in respect of maternity leave conditional on the worker's undertaking to return to work after the birth of the child for at least one month, failing which she is required to repay the difference between the amount of the pay she will have received during the period of maternity leave, on the one hand, and the amount of those payments, on the other.

8 2. Article 8 of Directive 92/85 and Article 5(1) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions do not preclude a clause in an employment contract from requiring an employee who has expressed her intention to commence her maternity leave during the six weeks preceding the expected week of childbirth, and is on sick leave with a pregnancy-related illness immediately before that date and gives birth during the period of sick leave, to bring forward the date on which her paid maternity leave commences either to the beginning of the sixth week preceding the expected week of childbirth or to the beginning of the period of sick leave, whichever is the later. 3. A clause in an employment contract which prohibits a woman from taking sick leave during the minimum period of 14 weeks' maternity leave to which a female worker is entitled pursuant to Article 8(1) of Directive 92/85, unless she elects to return to work and thus terminate her maternity leave, is not compatible with Directive 92/85. By contrast, a clause in an employment contract which prohibits a woman from taking sick leave during a period of supplementary maternity leave granted to her by the employer, unless she elects to return to work and thus terminate her maternity leave, is compatible with Directives 76/207 and 92/ Directives 92/85 and 76/207 do not preclude a clause in an employment contract from limiting the period during which annual leave accrues to the minimum period of 14 weeks' maternity leave to which female workers are entitled under Article 8 of Directive 92/85 and from providing that annual leave ceases to accrue during any period of supplementary maternity leave granted to them by their employer. 5. Directive 92/85 precludes a clause in an employment contract from limiting, in the context of an occupational scheme wholly financed by the employer, the accrual of pension rights during the period of maternity leave referred to by Article 8 of that directive to the period during which the woman receives the pay provided for by that contract or national legislation. Advocate General D. Ruiz-Jarabo Colomer delivered his Opinion at the sitting of the Full Court on 19 February He proposed that the Court give following answers: 1. In circumstances such as those of the present case, neither Article 119 of the Treaty of Rome, nor Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, nor Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, nor Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breast-feeding (tenth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC) precludes the application of clauses of the kind examined in this Opinion under which:

9 (1) an employer, who is prepared, for the benefit of his employees, to go beyond the legal provisions applicable to pay during maternity leave, imposes, as a quid pro quo, by means of clauses like those of the EOC Maternity Scheme, the requirement that the employees declare, before commencing maternity leave, that they intend returning to work and give an undertaking to repay the difference between the full salary paid to them and the Statutory Maternity Pay that they would have received had they not given an undertaking to return to work, in the event of their failing to come back to work for at least one month; (2) where a worker has indicated that she wishes to commence maternity leave on any date in the six weeks prior to the expected week of confinement and is declared unfit for work on account of pregnancy immediately before that date, then, if the birth occurs whilst she is in that situation, the commencement of her maternity leave may be backdated to the later of the following two dates: the beginning of the period of sick leave or the start of the sixth week prior to the expected week of confinement; (3) a woman who has begun her maternity leave or is on unpaid maternity leave is not allowed to be accorded sick leave on full pay being entitled in the latter case to claim only Statutory Sick Pay and is required, in order to be granted such leave, to have stated, three weeks in advance, her intention to return to work on a specified day, thereby bringing to an end, if the birth has occurred, her special maternity leave arrangements, provided that the two weeks of compulsory maternity leave have already been taken; (4) the time for which annual leave accrues is limited to the 14 weeks' duration of the maternity leave, and such accrual is excluded during unpaid maternity leave. 2. Article 11(2)(a) of Directive 92/85, in conjunction with Article 8 thereof, precludes making the accrual of pension rights under an occupation scheme during the 14 weeks' maternity leave conditional upon the employee's receiving, by way of salary or Statutory Maternity Pay, income from her employer. Case C-364/97 Commission of the European Communities v Ireland Social policy 27 October 1998 (Failure to fulfil obligations Non-transposition of Directive 93/103/EC) (First Chamber) By application lodged at the Court Registry on 22 October 1997, the Commission of the European Communities brought an action for a declaration that, by not adopting and/or by not communicating to the Commission the laws, regulations and administrative provisions necessary to comply with Council Directive 93/103/EC of 23 November 1993 (hereinafter 'the Directive ), Ireland has failed to fulfil its obligations under the EC Treaty.

10 The Irish Government does not deny the infringement, but states that draft ministerial orders transposing the Directive into national law are in the process of being adopted. It is settled law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion, and that the Court cannot take account of any subsequent changes. Since the Directive was not transposed into national law within the period prescribed, the Commission's application must be regarded as well founded. The Court: '1. Declares that, by failing to adopt within the period prescribed the laws, regulations and administrative provisions necessary to comply with Council Directive 93/103/EC of 23 November 1993 concerning the minimum safety and health requirements for work on board fishing vessels (thirteenth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC), Ireland has failed to fulfil its obligations under Article 13(1) thereof; 2. Orders Ireland to pay the costs. Advocate General A. La Pergola delivered his Opinion at the sitting of the First Chamber on 17 September He proposed that the Court: uphold the application, declaring that Ireland has failed to fulfil its obligations under Article 13(1) of Council Directive 93/103/EC of 23 November 1993 concerning the minimum safety and health requirements for work on board fishing vessels (thirteenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), by not adopting within the prescribed period the laws, regulations and administrative provisions necessary to comply with that Directive; and order Ireland to pay the costs. Case C-51/97 Réunion Européenne SA and Others v Spliethoff's Bevrachtingskantoor BV and Capitaine Commandant le Navire 'Alblasgracht V002 Judgments Convention/Enforcement of judgments 27 October 1998 Preliminary ruling (Brussels Convention Interpretation of Articles 5(1) and (3) and 6 Claim for compensation by the consignee or insurer of the goods on the basis of the bill of lading against a defendant who did not issue the bill of lading but is regarded by the plaintiff as the actual maritime carrier)

11 (Third Chamber) By judgment of 28 January 1997, the Cour de Cassation referred to the Court of Justice for a preliminary ruling four questions on the interpretation of Articles 5(1) and (3) and 6 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by the Convention of 9 October 1978, 25 October 1982 and 26 May 1989 ('the Convention ). Those questions arose in proceedings brought by nine insurance companies and, as lead insurer, the company Réunion Européenne (hereinafter 'the insurers ), which have been subrogated to the rights of the company Brambi Fruits (hereinafter 'Brambi ), whose registered office is in Rungis (France), against Spliethoff's Bevrachtingskantoor BV, whose registered office is in Amsterdam (Netherlands), and the Master of the vessel Alblasgracht V002, residing in the Netherlands, following the discovery of damage to a cargo of cartons of pears delivered to Brambi, in the carriage of which the defendants were involved. The main proceedings The goods at issue in the main proceedings were carried by sea, from Melbourne (Australia) to Rotterdam (Netherlands) aboard the vessel Alblasgracht V002 under a bearer bill of lading issued on 8 May 1992 in Sydney, Australia, by Refrigerated Container Carriers PTY Ltd (hereinafter 'RCC ), whose registered office is in Sydney, then by road under an international consignment note, to Rungis in France, where Brambi discovered the damage. The insurers, having paid compensation for the damage suffered by Brambi and been subrogated to that, brought proceedings to recoup their loss against RCC, Spliethoff's Bevrachtingskantoor BV, and, finally, against the Master of the vessel Alblasgracht V002, before the Tribunal de Commerce (Commercial Court), Créteil, in whose jurisdiction Rungis is situated. The Tribunal de Commerce, Créteil, therefore considered that it should decline jurisdiction in the proceedings brought by the insurers against Spliethoff's Bevrachtingskantoor BV and the Master of the vessel Alblasgracht V002 in favour of the courts of Rotterdam, Rotterdam being the place of performance of the obligation within the meaning of Article 5(1) of the Convention, or those of Amsterdam or of Sydney pursuant to Article 6(1) of the Convention, according to which a person who is one of a number of defendants may be sued before the courts for the place where any one of them is domiciled. The Cour d'appel (Court of Appeal), Paris, confirmed, by judgment of 16 November 1994, that the Tribunal de Commerce, Créteil, lacked international jurisdiction as regards Spliethoff's Bevrachtingskantoor BV and the Master of the vessel Alblasgracht V002, whereupon the insurers appealed to the Cour de Cassation. The Cour de Cassation decided to stay proceedings and refer as series of questions to the Court of Justice for a preliminary ruling. Thefirstandsecondquestions

12 According to Spliethoff's Bevrachtingskantoor BV and the Master of the Alblasgracht V002, the dispute is a matter relating to a contract within the meaning of Article 5(1) of the Convention since the action against them is based on the bill of lading, the document containing the transport contract. According to settled case-law the phrase 'matter relating to a contract in Article 5(1) of the Convention is to be interpreted independently and cannot be taken to refer to how the legal relationship in question before the national court is classified by the relevant national law. As the Court held in Handte of 17 June 1992, that the phrase 'matters relating to contract, as used in Article 5(1) of the Convention, is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards the other. In the present case, that bill of lading discloses no contractual relationship freely entered into between Brambi on the one hand and, on the other, Spliethoff's Bevrachtingskantoor BV and the Master of the Alblasgracht V002, who, according to the insurers, were the actual maritime carriers of the goods. In those circumstances, the action brought against the latter by the insurers cannot be a matter relating to a contract within the meaning of Article 5(1) of the Convention. It is next necessary to determine whether such an action is concerned with a matter relating to tort, delict or quasi-delict within the meaning of Article 5(3) of the Convention. In Kalfelis v Schröder of 27 September 1988 the Court defined the concept of matters relating to tort, delict or quasi-delict within the meaning of Article 5(3) of the Convention as an independent concept covering all actions which seek to establish the liability of a defendant and which are not related to a 'contract within the meaning of Article 5(1). That is the position in the main proceedings. The third question In the judgments of 30 November 1976, Mines de Potasse d'alsace, and of 7 March 1995, Shevill and Others, the Court held that the expression 'place where the harmful event occurred in Article 5(3) of the Convention must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the plaintiff, in the courts for either of those places. That term cannot be construed so extensively as to encompass any place where the adverse consequences can be felt of an event which has already caused damage actually arising elsewhere. In an international transport operation of the kind at issue in the main proceedings, the place where the damage occurred cannot be either the place of final delivery, which can be changed in mid-voyage, or the place where the damage was ascertained.

13 To allow the consignee to bring the actual maritime carrier before the courts for the place of final delivery or before those for the place where the damage was ascertained would in most cases mean attributing jurisdiction to the courts for the place of the plaintiff's domicile, whereas the authors of the Convention demonstrated their opposition to such attribution of jurisdiction otherwise than in the cases for which it expressly provides. In those circumstances, the place where the damage arose in the case of an international transport operation of the kind at issue in the main proceedings can only be the place where the actual maritime carrier was to deliver the goods. Thefourthquestion It must be noted at the outset that the Convention does not use the term 'indivisible in relation to disputes but only the term 'related, in Article 22. In the judgment of 24 June 1981, Elefanten Schuh, the Court held that Article 22 of the Convention applies only where related actions are brought before courts of two or more Contracting States. It is clear from the documents before the Court in this case that separate actions have not been brought before the courts of different Contracting States, so that, in any event, the conditions for the application of Article 22 are not met. It must next be borne in mind that, under Article 3 of the Convention, persons domiciled in a Contracting State may be sued in the courts of another Contracting State only by virtue of the rules set out in Sections 2 to 6 of Title II. Those rules include, in Article 6(1) of the Convention, the rule that a person may also be sued, 'where he is one of a number of defendants, in the courts for the place where any one of them is domiciled. After pointing out that the purpose of Article 6(1) of the Convention, and of Article 22, is to ensure that judgments which are incompatible with each other are not given in the Contracting States, the Court held in Kalfelis that, for Article 6(1) of the Convention to apply there must exist between the various actions brought by the same plaintiff against different defendants a connection of such a kind that it is expedient to determine the actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. It follows that two claims in one action for compensation, directed against different defendants and based in one instance on contractual liability and in the other on liability in tort or delict cannot be regarded as connected.

14 The Court ruled: '1. An action by which the consignee of goods found to be damaged on completion of a transport operation by sea and then by land, or by which his insurer who has been subrogated to his rights after compensating him, seeks redress for the damage suffered, relying on the bill of lading covering the maritime transport, not against the person who issued that document on his headed paper but against the person whom the plaintiff considered to be the actual maritime carrier, falls within the scope not of matters relating to a contract within the meaning of Article 5(1) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, but of matters relating to tort, delict or quasi-delict within the meaning of Article 5(3) of that Convention. 2. The place where the consignee of the goods, on completion of a transport operation by sea and then by land, merely discovered the existence of the damage to the goods delivered to him cannot serve to determine the place where the harmful event occurred within the meaning of Article 5(3) of the Convention of 28 September 1968, as interpreted by the Court. 3. Article 6(1) of the Convention of 27 September 1968 must be interpreted as meaning that a defendant domiciled in a Contracting State cannot be sued in another Contracting State before a court seised of an action against a codefendant not domiciled in a Contracting State on the ground that the dispute is indivisible rather than merely displaying a connection. Advocate General G. Cosmas delivered his Opinion at the sitting of the Third Chamber on 5 February He proposed that the Court reply as follows: 1. An action by which the consignee of goods found to be damaged on completion of a transport operation by sea and then by land, or by which his insurer who has been subrogated to his rights after compensating him, seeks redress for the damage suffered, relying on the bill of lading covering the maritime transport, not against the person who issued that document on his headed paper but against the person whom the plaintiff considered to be the actual maritime carrier, falls within the scope not of matters relating to a contract within the meaning of Article 5(1) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, but of matters relating to tort, delict or quasi-delict within the meaning of Article 5(3) of that Convention.

15 2. The place where the consignee of the goods, on completion of a transport operation by sea and then by land, merely discovered the existence of the damage to the goods delivered to him cannot serve to determine the 'place where the harmful event occurred within the meaning of Article 5(3) of the Convention of 28 September 1968, as interpreted by the Court. 3. Article 6(1) of the Convention of 27 September 1968 must be interpreted as meaning that a defendant domiciled in a Contracting State cannot be sued in another Contracting State before a court seised of an action against a co-defendant not domiciled in a Contracting State on the ground that the dispute is indivisible rather than merely displaying a connection. Case C-4/97 Manifattura Italiana Nonwoven SpA v Direzione Regionale delle Entrate per la Toscana Taxation 27 October 1998 Preliminary ruling (Directive 69/335/EEC Taxes on the raising of capital Tax on companies' net assets) (Sixth Chamber) By order of 18 October 1996, the Commissione Tributaria Provinciale di Firenze (Provincial Tax Court, Florence) referred to the Court for a preliminary ruling a question concerning the interpretation of Council Directive 69/335/EEC of 17 July 1969 as amended by Council Directive 85/303/EEC of 10 June 1985 ('the Directive ). That question has arisen in a dispute between Manifattura Italiana Nonwoven SpA ('Nonwoven ) and the Direzione Regionale delle Entrate per la Toscana concerning Nonwoven's application for reimbursement of an amount paid as tax on companies' net assets. According to Nonwoven, the tax contravened the prohibition in the Directive of making the raising of capital subject to any charge other than capital duty. The national court is essentially asking whether the Directive precludes the levying on capital companies of a tax such as the Italian tax on companies' net assets. As far as the objective characteristics of the tax at issue are concerned the various transactions which, in accordance with Article 4(1) of the Directive, must be subjected to capital duty are all transactions involving the transfer of capital or assets to a capital company in the taxing Member State. Similarly, the categories of transaction which, under Article 4(2), may be subject to capital duty all result in an effective increase in the company's capital or assets. A tax on assets such as that at issue, on the other hand, is levied annually, at the end of the financial year, on the net assets of companies as set out in their balance sheets. It does not presuppose any transaction involving the movement of capital or assets.

16 It follows that a tax such as that at issue in the main proceedings is neither a capital duty nor a tax having the same characteristics as such a duty. The Court ruled: 'Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, does not preclude the levying on capital companies of a tax such as the tax on companies' net assets. Advocate General N. Fennelly delivered his Opinion at the sitting of the Sixth Chamber on 18 June He suggested that the Court reply as follows: Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985 amending Directive 69/335/EEC, does not apply to the imposition on capital companies of a tax such as the annual tax on the net assets of companies introduced by virtue of Decree-Law of the Italian Republic No 394 of 30 September Joined Cases C-31/97 and C-32/97 Fuerzas Eléctricas de Catalunya SA (FECSA) and Autopistas Concesionaria Española SA v Departament d'economía and Finances de la Generalitat de Catalunya Taxation 27 October 1998 Preliminary ruling (Directive 69/335/EEC Indirect taxes on the raising of capital Duty on notarial deeds recording the repayment of debenture loans) (Sixth Chamber) By orders of 3 and 9 December 1996, the Tribunal Superior de Justicia de Catalunya (High Court of Justice, Catalonia) referred to the Court for a preliminary ruling a question on the interpretation of Articles 11(b) and 12 of Council Directive 69/335/EEC of 17 July 1969 (hereinafter 'the Directive ). That question was raised in two sets of proceedings brought by Fuerzas Eléctricas de Catalunya SA (hereinafter 'FECSA ) and Autopistas Concesionaria Española SA (hereinafter 'ACESA ) against the Departament d'economía i Finances de la Generalitat de Catalunya (Department of Economy and Finance of the Generalitat of Catalonia, hereinafter 'the tax authorities ) concerning the payment of duty on notarial deeds recording the repayment of debenture loans. By order of the President of the Court of 4 February 1997, the cases were joined for the purposes of the written procedure, the oral procedure and the judgment.

17 By its question, the national court seeks, in substance, to ascertain whether Article 11(b) of the Directive must be interpreted as meaning that the prohibition of taxation on debenture loans applies to the duty on notarial deeds recording the repayment of loans and, if so, whether such a duty is covered by the derogation provided for in particular in Article 12(1)(d) of the Directive. It must be remembered that Article 11(b) of the Directive prohibits taxation, of any form whatsoever, on loans raised by the issue of debentures or other negotiable securities, by whomsoever issued, or any formalities relating thereto, or the creation, issue, admission to quotation on a stock exchange, making available on the market or dealing in such debentures or other negotiable securities. It follows that Article 11(b) of the Directive must be interpreted as meaning that the prohibition of taxation on debenture loans extends to taxation on the repayment of such loans. It must then be remembered that Article 11(b) of the Directive prohibits not only taxation on debenture loans, but also on any formalities relating thereto. Accordingly, even if the duty at issue in the main proceedings is not chargeable on the repayment of loans as such, it is none the less levied on the notarial deeds which are obligatory to have the repayment registered, that is to say in respect of formalities relating thereto. Finally, it must be recognised that the Member States remain free, in accordance with Article 12(1)(d) of the Directive, to levy duties on the discharge of mortgages or other charges on land or other property. However, the repayment of a debenture loan constitutes a discrete financial transaction, separate from the discharge of a mortgage registered in order to secure the debentures resulting from the loan. It follows that, even if a debenture loan is secured by a mortgage, the repayment of the loan cannot be subject to taxation. The Court ruled: 'Article 11(b) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital must be interpreted as meaning that the prohibition of taxation on debenture loans applies to the duty on notarial deeds recording the repayment of loans. Such a duty cannot come within the derogation provided for in Article 12(1)(d) of the said directive. Advocate General N. Fennelly delivered his Opinion at the sitting of the Sixth Chamber on 11 June He recommended that the Court reply as follows: Articles 11 and 12 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital should be interpreted as precluding the levying of 0.5% duty on the notarial deed recording the redemption of a loan in circumstances such as those of the main proceedings.

18 Case C-152/97 Abbruzzi Gas SpA (Agas) v Amministrazione Tributaria di Milano Taxation 27 October 1998 Preliminary ruling (Directive 69/335/EEC Indirect taxes on the raising of capital Merger of companies Acquisition by a company which already holds all the securities of the companies acquired) (Sixth Chamber) By order of 24 March 1997, the Commissione Tributaria Provinciale (Provincial Tax Court), Milan, referred for a preliminary ruling a question on the interpretation of Council Directive 69/335/EEC of 17 July 1969 as amended by Council Directive 85/303/EEC of 10 June 1985 (hereinafter 'the Directive ). That question was raised in proceedings between Abruzzi Gas SpA, a company incorporated under Italian law, and the Amministrazione Tributaria di Milano concerning duty levied on the registration of a merger which took place through the acquisition by Agas of Briangas Spa and Italgasdotti Serio Srl. The question referred for a preliminary ruling By that question, the national court is essentially asking whether the Directive precludes the levying of registration duty where companies are acquired by another company which already holds all their stocks and shares. It is apparent from Article 1 of the Directive, read in conjunction with Article 4 thereof, that the duty levied on contributions to capital companies constitutes a 'capital duty within the meaning of the Directive where it applies to transactions covered by the Directive. The transactions which are or may be rendered subject to the harmonised capital duty by the Member States are defined in Article 4 of the Directive objectively and with uniform application to all Member States. Consequently, if the transaction in question is to fall within the scope of the Directive, it must be possible to bring it within one of the cases described in Article 4 thereof to which Article 10(a) and (b) of the Directive refer. That is in turn subject to the prohibition laid down in Article 10(c) of the Directive on taxation in respect of registration or any other formality required before the commencement of business, to which a company may be subject by reason of its legal form. With reference to the present case, it should be noted, first of all, that a merger through acquisition by a company which already holds all the shares in the companies acquired does not entail any increase in the share capital of the acquiring company and does not therefore fall within the scope of Article 4(1)(c) of the Directive.

19 Nor does such a transaction fall within the scope of Article 4(1)(d) of the Directive. Lastly, it should be noted that a transaction such as that at issue in the main proceedings is not covered by Article 4(2)(b) of the Directive. That provision presupposes that the increase in the assets consists in the provision of services by a member, which is not the position here. Secondly, as regards the applicability of Article 10(c) of the Directive, in a case such as that in point in the main proceedings, the registration duty does not appear to have been paid on the registration of a new capital company, that is to say, on completion of a formality required for the commencement of business. Furthermore, it was not levied on the registration of an increase in capital, necessary for the carrying on of that business. Consequently, the registration duty at issue in the main proceedings does not fall under the prohibition laid down in Article 10(c) of the Directive. It must be concluded that one of the aims pursued by the Directive does not apply to registration duty levied in respect of the acquisition of companies by a company which already holds all their share capital. The Court ruled: 'Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, does not preclude the levying of registration duty in respect of the acquisition of companies by a company which already holds all the shares in the companies acquired. Advocate General G. Cosmas delivered his Opinion at the sitting of the Sixth Chamber on 25 June He proposed that the Court reply as follows: It is not contrary to Articles 4(1)(c) or 7(1)(b) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, for registration duty to be levied in respect of merger by acquisition of a company by another company which already holds 100% of the shares in the first company. Case C-230/97 Ibiyinka Awoyemi Freedom of movement for persons 29 October 1998 Preliminary ruling (Driving licence Interpretation of Directive 80/1263/EEC Failure to comply with the obligation to exchange a licence issued by one Member State to a national of a non-member country for a licence from another Member State in which that person is now resident Criminal penalties Effect of Directive 91/439/EEC)

20 (Second Chamber) By decision of 17 June 1997, the Hof van Cassatie (Court of Cassation) referred to the Court for a preliminary ruling three questions on the interpretation of Article 8(1) of the First Council Directive 80/1263/EEC of 4 December 1980 and of Articles 1(2) and 8(1) of Council Directive 91/439/EEC of 29 July Those questions were raised in criminal proceedings instituted by the public prosecutor's office against Mr Awoyemi, who was charged with driving a motor vehicle on the public highway in Belgium without being in possession of a valid driving licence. The first question It is apparent from the order for reference that, in its first question, the national court is essentially asking the Court whether the provisions of Directive 80/1263 or those of the Treaty preclude the driving of a motor vehicle by a national of a non-member country who holds a Community model driving licence issued by one Member State and who, having transferred his residence to another Member State, could have obtained a licence issued by the host State in exchange, but did not complete that formality within the prescribed period of one year, from being treated by the latter State as driving without a licence and thus rendered punishable by imprisonment or a fine. Directive 80/1263 makes no provision for the penalties to be imposed in the event of breach of the obligation laid down in the first subparagraph of Article 8(1) to exchange driving licences. Accordingly, in the absence of Community rules governing the matter, the Member States remain competent in principle to impose penalties for breach of such an obligation. Moreover, the Member States may not impose a criminal penalty in this area so disproportionate to the gravity of the infringement as to become an obstacle to the free movement of persons (judgment in Skanavi and Chryssanthakopoulos of 29 February 1996). However, a person such as Mr Awoyemi may not rely on that case-law. It follows from the judgment in Skanavi and Chryssanthakopoulos, thatthejustificationforthe restriction imposed on the power of the Member States to provide for criminal penalties in the event of breach of the obligation to exchange driving licences is the free movement of persons established by the Treaty. A national of a non-member country who finds himself in the same position as Mr Awoyemi may not effectively rely on the rules governing the free movement of persons which, in accordance with settled case-law, apply only to a national of a Member State of the Community who seeks to establish himself in the territory of another Member State or to a national of the Member State in question who finds himself in a situation which is connected with any of the situations contemplated by Community law.