# C_2009180EN.01002601.xml

| 1.8.2009 | EN | Official Journal of the European Union | C 180/26 |
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1.8.2009

EN

Official Journal of the European Union

C 180/26

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Action brought on 7 May 2009 — Commission of the European Communities v Kingdom of Spain

(Case C-158/09)

2009/C 180/45

Language of the case: Spanish

Parties

Parties

Applicant: Commission of the European Communities (represented by: I. Martinez del Peral Cagigal and M. van Beek, Agents)

Applicant:

Defendant: Kingdom of Spain

Defendant:

Form of order sought

Form of order sought

| — | Declare that by failing to adopt the legislative or regulatory measures necessary to transpose Directive 2003/88/EC (1) in respect of non-civilian personnel in public authorities, the Kingdom of Spain has failed to fulfil its obligations under Article 1(3) of Directive 2003/88/EC, and under Article 18(a) of Directive 93/104/EC (2) retained by Article 27(1) of Directive 2003/88/EC in conjunction with Annex I, part B, to that directive; |
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Declare that by failing to adopt the legislative or regulatory measures necessary to transpose Directive 2003/88/EC (1) in respect of non-civilian personnel in public authorities, the Kingdom of Spain has failed to fulfil its obligations under Article 1(3) of Directive 2003/88/EC, and under Article 18(a) of Directive 93/104/EC (2) retained by Article 27(1) of Directive 2003/88/EC in conjunction with Annex I, part B, to that directive;

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| — | order the Kingdom of Spain to pay the costs. |
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order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The purpose of Directive 2003/88/EC is to lay down minimum safety and health requirements for the organisation of working time. As a codifying directive it replaces Directive 93/104/EC without prejudice to the obligations of the Member States in respect of the deadlines for transposition.

The transposition measures for Directive 2003/88/EC notified to the Commission by the Spanish authorities do not include the legislative or regulatory measures necessary for the transposition of the directive in respect of non-civilian personnel in public authorities.

Article 1(3) of Directive 2003/88/EC provides that that directive is to apply to all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC (3) which contains certain exceptions on account of characteristics peculiar to certain specific public service activities, such as the armed forces or the police, or to certain specific activities in the civil protection services. In accordance with the case-law of the Court of Justice, the criterion used by the Community legislature to determine the scope of application of Directive 89/391/EEC is not based on the fact of the workers belonging to the specific sectors of activity referred to in Article 2, considered as a whole, but rather is based exclusively on the specific nature of certain special tasks carried out by the workers in those sectors.

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Consequently, the applicant takes the view that there is no doubt that Directive 2003/88/EC applies to non-civilian personnel in public authorities and, within that sector, to the Guardia Civil (Civil Guard), as a consequence of which the failure to take the necessary transposition measures in that area constitutes an infringement of that directive.

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(1)  Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).

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(2)  Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18).

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(3)  Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1).

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