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26.4.

2008 EN Official Journal of the European Union C 107/13

3. If the answer is ‘yes’, is the national court required to take cies’ of employees and ‘in good time’ requires consultations
account of the prohibition of discrimination having the to be started when it is established from strategic decisions
effect of distorting competition when interpreting and or changes that have been made relating to the activity that a
applying Article 3 of Directive 89/104 if it has established need for collective redundancies of employees follows? Or is
discrimination of that nature? the provision in question to be interpreted as meaning that
the obligation to start consultations already arises on the
4. If Questions 1 to 3 are answered in the negative, in order to basis of the employer contemplating measures or changes
prevent distortion of competition, must it be possible under affecting the activity, such as a change in production capacity
national legislation for the national authority to be placed or a concentration of production, as a consequence of which
under an obligation to initiate, of its own motion, an action a need for collective redundancies is to be expected?
for the annulment of trade marks which have previously
been wrongly registered?

(1) OJ 1989 L 40, p. 1. 2. Having regard to the fact that the first subparagraph of
Article 2(3) of the directive refers to the supply of informa-
tion in good time during the course of the consultations, is
Article 2(1) of the directive to be interpreted as meaning that
the obligation under that provision to start consultations
when ‘contemplating’ collective redundancies and ‘in good
time’ requires consultations to be started already before the
employer's intentions have reached the stage at which the
Reference for a preliminary ruling from the Korkein employer is required to identify and supply to the employees
oikeus (Finland) lodged on 8 February 2008 — Akavan the information specified in Article 2(3)(b)?
Erityisalojen Keskusliitto AEK ry v Fujitsu Siemens
Computers Oy

(Case C-44/08)
3. Is Article 2(1) in conjunction with Article 2(4) of the direc-
tive to be interpreted as meaning that, in a situation in
(2008/C 107/20)
which the employer is controlled by another undertaking,
the employer's obligation to start consultations with the
Language of the case: Finnish representatives of the employees originates when either the
employer or the parent company controlling the employer
contemplates action for collective redundancies of employees
in the employer's service?

Referring court

Korkein oikeus 4. In the case of consultations to be carried on in a subsidiary


belonging to a group, and in assessing in the light of the
provisions of Article 2(4) of the directive the obligation
under Article 2(1) to enter into consultations when ‘contem-
Parties to the main proceedings plating’ collective redundancies and ‘in good time’, does the
obligation to start consultations already arise when the
management of the group or the parent company contem-
Applicants: Akavan Erityisalojen Keskusliitto AEK ry, Erityisalojen plates collective redundancies but that intention has not yet
Toimihenkilöliitto ERTO ry, Uusi Insinööriliitto UIL ry (formerly taken concrete form as concerning the employees in the
Insinööriliitto IL ry), Metallityöväen Liitto ry, Palvelualojen service of a particular subsidiary under its control, or does
Ammattiliitto PAM ry, Suomen Ekonomiliitto — Finlands the obligation to embark on consultations within the
Ekonomförbund SEFE ry, Ammattiliitto SUORA ry Suomen subsidiary arise only at the stage when the management of
Valtiotieteilijöitten Liitto SVAL ry — Statsvetarnas Förbund i the group or the parent company contemplates collective
Finland rf, Sähköalojen Ammattiliitto ry, Tekniikan Akatee- redundancies specifically in that subsidiary company?
misten Liitto TEK ry, Toimihenkilöunioni TU ry

Defendant: Fujitsu Siemens Computers Oy

5. If the employer is an undertaking (a subsidiary belonging to


a group) controlled within the meaning of Article 2(4) of the
Questions referred directive by another undertaking (parent company or group
management), is Article 2 of the directive to be interpreted
as meaning that the consultation procedure referred to there
1. Is Article 2(1) of Directive 98/59/EC (1) to be interpreted as must be concluded before the decision on collective redun-
meaning that the obligation under that provision to embark dancies to be implemented in the subsidiary company is
on consultations when ‘contemplating collective redundan- taken within the parent company or the group management?
C 107/14 EN Official Journal of the European Union 26.4.2008

6. If the directive is to be interpreted in such a way that the Member States to interpret measures as they wish, or do
consultation procedure to be carried on within the subsidiary they, in their entirety, concern a minimum of harmonisation?
company must be concluded before the decision giving rise
to collective redundancies of employees is taken within the
parent company or group management, is it only a decision
whose direct consequence is the implementation of collective 2. Should Article 2(1) of the Market Abuse Directive be inter-
redundancies in the subsidiary company that is relevant in preted as meaning that the mere fact that a person as
that connection, or must the consultation procedure be referred to in Article 2(1) of that directive possesses inside
brought to a conclusion already before a commercial or stra- information and acquires or disposes of, or tries to acquire
tegic decision is taken within the parent company or the or dispose of, for his own account or for the account of a
group management on the basis of which collective redun- third party, financial instruments to which that inside infor-
dancies in the subsidiary company are probable but not yet mation relates, signifies in itself that he makes use of his
finally certain? inside information?

(1) Council directive 98/59/EC of 20 July 1998 on the approximation of 3. If the answer to the second question is negative, must it then
the laws of the Member States relating to collective redundancies be assumed that the application of Article 2 of the Market
(OJ 1998 L 225, p. 16). Abuse Directive presupposes that a deliberate decision has
been taken to use inside information?

If such a decision may also be unwritten, is it then required


that the decision to use inside information is evident from
circumstances susceptible to no other interpretation, or is it
sufficient that those circumstances could be so interpreted?

Reference for a preliminary ruling from the Hof van


beroep te Brussel, Belgium lodged on 8 February 2008 — 4. If in the determination of the proportionate nature of an
Spector Photo Group NV and Chris Van Raemdonck v administrative sanction, as referred to in Article 14 of the
Commissie voor het Bank-, Financie- en Assurantiewezen Market Abuse Directive, account must be taken of the gains
(CBFA) realised, should it be assumed that the publication of infor-
mation to be designated as inside information has indeed
had a significant effect on the price of the financial instru-
(Case C-45/08) ment?

(2008/C 107/21)
If so, what minimum level of price movement must have
occurred for it to be possible to regard it as significant?
Language of the case: Dutch

5. Whether or not the price movement after the publication of


information must be significant, what period should be
taken into account after the publication of the information
Referring court
for the determination of the scale of the price movement,
and what date should be taken as the basis for gauging the
Hof van beroep te Brussel, Belgium financial advantage gained in the determination of the appro-
priate sanction?

Parties to the main proceedings 6. In the light of the determination of the proportionate nature
of the sanction, should Article 14 of the Market Abuse
Directive be interpreted as meaning that, if a Member State
Applicants: Spector Photo Group NV and Chris Van Raemdonck has introduced the option of a criminal sanction, combined
with an administrative sanction, account must be taken of
Defendant: Commissie voor het Bank-, Financie- en Assurantie- the option and level of a criminal financial penalty in the
wezen (CBFA) consideration of its proportionality?

(1) Directive 2003/6/EC of the European Parliament and of the Council


of 28 January 2003 on insider dealing and market manipulation
Questions referred (market abuse) (OJ 2003 L 96, p. 16).

1. Do the provisions of the Market Abuse Directive (1), and


especially Article 2 thereof, call for full harmonisation, with
the exception of those provisions which explicitly permit the