Luxembourg, 29/01/2001 (Agence Europe) - Last week the EU Court of Justice made three rulings that respectively concern: - rights of workers taken on in a company following an allocation of a public market; - setting of place of taxation during complex transactions where two Member States overlap, provision of services and delivery of goods (waste management contracts); - the margin for manoeuvre of the national authorities in the management and recovery of the money from the European Social Fund in case of noted irregularities.
- Maintaining the right of workers in case of company transfers: This is case sent to it by the Finnish High Court, the Korkein oikeus. When a company takes over from another through a reallocation of public market, the European Directive on the maintaining of the workers rights applies, stated the sixth chamber of the Court of Justice Presided by Claus Gulmann. It thus answers the Finnish court which must statute on the request by several bus drivers taken on by the Likenne company that had been reallocated a public market for the operation of several local routes. These drivers wanted to maintain the rights gained from the former employer. Which was refused by Likenne which asserted having no contractual links with the former operator. The sixth chamber ruled in favour of the drivers on the basis of principals.
However, the second part of the ruling is not in their favour. Road transport is an activity which other than manpower requires significant equipment. If this equipment has not been transferred, which was the case, there is no company transfer and the European Directive does no apply (the Court already said in an Allen ruling concerning tunnelling companies). The European Commission, which was present at the trial had supported the contrary: the absence of sales of assets between the former and new company being a "negligible circumstance" alone was determinant in the taking on of personnel. The sixth chamber did not support it.
- Reimbursement of VAT: This same sixth chamber made a ruling that experts feel it "useful and directly operational". On request from the European Commission, France is condemned for refusal to reimburse VAT to a company of another Member States (whose nationality has not been divulged) holder of a complex contract for the sorting management and elimination of waste. This company had paid VAT in France when it had entrusted to a French sub-contractor (located in France), the final phase of the contract (elimination as such of waste). A complex ruling, it to, in which the sixth chamber condemns France and presents a method for setting the place of taxation in this kind of situation. A method which ensures "rational and homogenous taxation (of a) complex provision taken as a whole and to avoid conflicts of competence between the Member States".
- Recovery of amounts paid under ESF: The last ruling of the week also made by the chamber of Claus Gulmann is aimed at helping the Portuguese administration responsible for the management of the affairs of the European Social Fund in its undertaking of the recovery of ESF sums of money in this case, from the Frota Azul-Transportes e Turismo company. This case was sent to the European Court by the Supreme Administrative Tribunal. In cases of noted irregularities, the authorities responsible for the managing of European funds may require the reimbursement of their contribution and the support of the European Social Fund, on a provisional basis, before the Commission has adopted its final decision, explains the sixth chamber. This chamber also gives technical indications that the Portuguese authorities will need.
