CELEX: 62013CJ0252
Failure of a Member State to fulfil obligations
Directives 2002/73/EC and 2006/54/EC
Equal treatment for men and women
Employment and occupation
Access to employment
Return from maternity leave
Formal requirements for the application initiating proceedings
Coherent summary of the pleas
Unambiguous wording of the form of order sought

By its application, the European Commission claims that the Court should declare that, by maintaining in force provisions of Netherlands legislation that are contrary to points (a) and (b) of the second paragraph of Article 1 and to Articles 15 and 28(2) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (
OJ 2006 L 204, p. 23
), the Kingdom of the Netherlands has failed to fulfil its obligations under that directive.
Legal context
EU law
Directive 2006/54, whose purpose, as stated in the first paragraph of Article 1 thereof, is ‘to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation’, repealed with effect from 15 August 2009 Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as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 (
OJ 1976 L 39, p. 40
). As indicated in recital 1 in the preamble thereto, for reasons of clarity, Directive 2006/54 recasts and brings together in a single text the main provisions existing in the fields covered by that directive.
Article 15 of Directive 2006/54, which is entitled ‘Return from maternity leave’, provides:
‘A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled during her absence.’
Article 28(2) of that directive states that Directive 2006/54 ‘shall be without prejudice to the provisions of [Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC (
OJ 1996 L 145, p. 4
)] 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 (
OJ 1992 L 348, p. 1
)].’
Provisions analogous to those of Articles 15 and 28(2) of Directive 2006/54 were inserted in the second and fourth subparagraphs of Article 2(7) of Directive 76/207 by Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Directive 76/207 (
OJ 2002 L 269, p. 15
).
Netherlands law
The Kingdom of the Netherlands transposed Directive 2002/73 into national law by means of the General Law on equal treatment (Algemeene wet gelijke behandeling; ‘the AWGB’), the Law on the equal treatment of men and women (Wet gelijke behandeling van mannen en vrouwen) and amendments to the Netherlands Civil Code (Nederlands Burgerlijk Wetboek; ‘the BW’).
Article 1 of the Law on the equal treatment of men and women is worded as follows:
‘1.   For the purposes of the present law, the following definitions shall apply:
...
(b)
direct discrimination: the situation in which one person is, has been or would be treated differently, on grounds of sex, from another person who is in a comparable situation;
…
2.   Direct discrimination also refers to discrimination on grounds of pregnancy, childbirth and/or maternity.’
Article 1 of the AWGB and Article 7:646(5) of the BW lay down equivalent provisions.
Article 5(1)(a) of the AWGB and Article 7:646(1) of the BW prohibit any discrimination, or the making of any distinction, between men and women as regards working conditions.
Under Article 7:611 of the BW, ‘the employer and the worker shall be under a duty to conduct themselves as a good employer and as a good worker respectively’.
The pre-litigation procedure
By letter of 29 June 2007, the Commission, acting in accordance with the procedure provided for in Article 226 EC, gave the Kingdom of the Netherlands formal notice to submit observations concerning its legislation implementing various provisions of Directive 2002/73. The Netherlands authorities replied by letter of 7 August 2003.
The Commission sent the Kingdom of the Netherlands a supplementary letter of formal notice dated 2 February 2009, to which the Netherlands authorities replied by letter of 27 March 2009. That reply enabled the Commission to withdraw its complaints relating to several aspects of the alleged failure to fulfil obligations.
As regards the remaining points at issue, the Commission sent the Kingdom of the Netherlands a reasoned opinion on 30 September 2011 stating its view that the Netherlands legislation did not constitute a sufficiently clear and precise transposition into national law of certain provisions of Directive 2006/54. The Commission concluded that the maintenance in force of provisions incompatible with points (a) and (b) of the second paragraph of Article 1 and with Articles 15, 16 and 28(2) of that directive was contrary to the obligations laid down therein. The Netherlands authorities replied to that reasoned opinion by letter of 1 December 2011.
On the view that, notwithstanding that reply, its complaint relating to points (a) and (b) of the second paragraph of Article 1 and Articles 15 and 28(2) of Directive 2006/54 was not devoid of purpose, the Commission decided to bring the present action.
Forms of order sought
In the application initiating proceedings, the Commission claimed that the Court should:
—
declare that, ‘by failing to adopt all the laws and regulations necessary to ensure that, by maintaining in force provisions of Netherlands legislation contrary to Article 1, [second paragraph], points (a) and (b), Article 15 and Article 28(2) of Directive 2006/54, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive’;
—
order the Kingdom of the Netherlands to pay the costs.
By letter of 6 June 2013, the Commission informed the Court Registry that, having noted ‘some unclear drafting’ in the formulation of its first head of claim, it wished to correct that wording. That head of claim should therefore be so framed as simply to claim that the Court should declare that ‘by maintaining in force provisions of Netherlands legislation that are contrary to Article 1, [second paragraph], points (a) and (b), Article 15 and Article 28(2) of Directive 2006/54, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive’;
The Kingdom of the Netherlands contends that the action should be dismissed and the Commission ordered to pay the costs.
The action
Arguments of the parties
Admissibility
The Kingdom of the Netherlands disputes the admissibility of the action on the ground that the application initiating proceedings does not meet the requirements of clarity, precision and coherence under the case-law of the Court.
First, the Kingdom of the Netherlands observes that the subject-matter of the action, as described on the first page of the application initiating proceedings, refers to Directive 2002/73, whereas the form of order sought in that application concerns only Directive 2006/54.
Secondly, the Kingdom of the Netherlands contends that that form of order is wholly unrelated to the arguments set out in the body of the application. In its view, those arguments do not concern the maintenance in force of legislative provisions which are allegedly incompatible with those laid down in Directive 2006/54 and which, moreover, are not specifically identified in that application; rather, they restate the Commission’s position according to which the Netherlands legislation fails fully to transpose that directive into national law.
The Commission submits that the clerical inaccuracies noted by the Kingdom of the Netherlands in the application initiating proceedings do not impair the clarity of that application.
In respect of the criticism that it did not identify the national provisions alleged to be incompatible with Directive 2006/54, the Commission states that, throughout the pre-litigation procedure, it had clearly maintained that Article 1 of the AWGB and Article 7:646(5) of the BW were insufficient to ensure the satisfactory transposition into national law of Articles 15 and 28(2) of the directive.
Substance
The Commission refers to the Court’s case-law according to which, for the purposes of the transposition of a directive into national law, it is essential for national law genuinely to ensure that the directive will be applied in full; for the legal position under that law to be sufficiently precise and clear; and for individuals to be made fully aware of all their rights and, where appropriate, to be able to rely on them before the national courts.
The Commission claims, in that regard, that neither the general provisions prohibiting all discrimination on grounds of pregnancy, childbirth or maternity nor the ‘principle of the good employer’ as construed in the Netherlands legal order constitutes a sufficiently clear and precise transposition into national law of the relevant provisions of Directive 2006/54.
In defence of its position, the Kingdom of the Netherlands refers to the Court’s case-law to the effect that the transposition of a directive into national law by specific legislative or regulatory measures may be rendered otiose by the existence of general principles of law, provided, however, that those principles actually ensure that the directive is applied in full.
According to the Kingdom of the Netherlands, the full application of Directive 2006/54 is ensured by the various provisions of Netherlands legislation to which it referred during the pre-litigation procedure and which it sets out in the defence.
Findings of the Court
The scope of the action
At the outset, it is important to determine the scope of the present action.
In this connection, it should be noted that, in considering an action brought under Article 258 TFEU, regard must be had only to the form of order sought in the original application (see, inter alia, judgment in
Commission
v
Belgium
, C‑132/09,
EU:C:2010:562
, paragraph 35 and the case-law cited).
It should also be borne in mind that the form of order sought must be set out unambiguously so that the Court does not rule
ultra petita
or indeed fail to rule on a complaint (see, inter alia, judgment in
Commission
v
Spain
, C‑67/12,
EU:C:2014:5
, paragraph 41 and the case-law cited).
In the present case, the first head of claim in the application initiating proceedings was drafted ambiguously, in that it could be construed as setting out two complaints, that is to say, insufficient national measures to ensure the full transposition of Directive 2006/54, on the one hand, and the maintenance in force, by the Kingdom of the Netherlands, of provisions incompatible with that directive, on the other.
By its letter of 6 June 2013, the Commission acknowledged the ambiguity of its first head of claim and indicated that it should be construed as a single complaint, namely, the maintenance in force by the Kingdom of the Netherlands of provisions incompatible with Directive 2006/54.
Since the Commission thereby restricts the scope of the form of order sought in the application initiating proceedings, it is necessary to take formal cognisance of that letter and to construe it as a partial withdrawal. The present action must therefore be regarded as concerning the maintenance in force by the Kingdom of the Netherlands of provisions which, according to the Commission, are contrary to points (a) and (b) of the second paragraph of Article 1 and to Articles 15 and 28(2) of Directive 2006/54.
Admissibility of the action
In accordance with Article 120(c) of the Rules of Procedure of the Court of Justice and the case-law relating to that provision, an application initiating proceedings must state the subject-matter of the proceedings and set out a summary of the pleas in law on which the application is based, and that statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the application. It follows that the essential points of law and of fact on which an action is based must be indicated coherently and intelligibly in the application itself (see, inter alia, judgment in
Commission
v
Spain
,
EU:C:2014:5
, paragraph 41 and the case-law cited).
The Court has also held that, where an action is brought under Article 258 TFEU, the application must set out the complaints coherently and precisely, so that the Member State and the Court can know exactly the scope of the alleged infringement of EU law, a condition that must be satisfied if the Member State is to be able to present an effective defence and the Court to determine whether there has been a breach of obligations, as alleged (see, inter alia, judgment in
Commission
v
Spain
,
EU:C:2014:5
, paragraph 42 and the case-law cited).
In the present case, the Kingdom of the Netherlands contends, first, that the present action does not meet those conditions inasmuch as it refers to Directives 2002/73 and 2006/54 in a confused manner.
In that regard, it must be observed that the pre-litigation stage of the present proceedings for failure to fulfil obligations began in June 2007, when the initial letter of formal notice was sent, and ended on 7 May 2013, when the present action was brought. Over that period of almost six years, Directive 2002/73, referred to in that letter of formal notice, was repealed with effect from 15 August 2009 and replaced, with almost the same legislative content, by Directive 2006/54. From that date, as the documents before the Court show, the pre-litigation procedure was continued with reference to the — substantively identical — provisions of the latter directive.
Accordingly, the mere fact that the subject-matter of the present action, as described on the first page of the application, concerns Directive 2002/73, while the form of order sought refers only to Directive 2006/54, is not liable to give rise to uncertainty as to the provisions of EU law in the light of which the merits of that action fall to be assessed. For the same reasons, the Kingdom of the Netherlands cannot claim that it was unable to grasp the scope of the alleged failure to fulfil obligations or that it was unable fully to exercise its rights of defence.
Secondly, the Kingdom of the Netherlands contends that the summary, in the application initiating proceedings, of the points of fact and of law on which the action is based lacks coherence as regards the form of order ultimately sought at the close of that summary.
In the present case, the Commission claims that the Court should declare that, by maintaining in force in its national legal order rules contrary to points (a) and (b) of the second paragraph of Article 1 and to Articles 15 and 28(2) of Directive 2006/54, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive. That head of claim delimits the subject-matter of the action, so that the Court does not rule
ultra petita
.
Although, in the grounds for its application, the Commission sets out in some detail the Netherlands legislation in force, this is for the purposes of its contention that those measures are insufficient to ensure the full transposition into national law of the provisions of Directive 2006/54 referred to in the preceding paragraph.
However, the Commission does not identify any rule of Netherlands law whose content or application is contrary to the wording or to the objective of the relevant provisions of Directive 2006/54.
In those circumstances, it must be held that, given the Commission’s failure to provide information that is essential if the Court is to be able, in full knowledge of the relevant facts, to rule on the form of order sought in the application, that application does not meet the requirements of clarity, precision and coherence under the relevant case-law.
Since the Court is not in a position to determine whether there was indeed a failure to fulfil obligations as alleged in the present action, the action must be dismissed as inadmissible.
Costs
Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Kingdom of the Netherlands has applied for costs and the Commission has been unsuccessful, the Commission must be ordered to pay the costs.

On those grounds, the Court (Sixth Chamber) hereby:

1.
Dismisses the action;

2.
Orders the European Commission to pay the costs.

[Signatures]
(
*1
)	Language of the case: Dutch.