Opinion of the Advocate General — ECLI:EU:C:2006:476
Date: 2006-07-13
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary of proceedings of the Working Party on Social Questions on 14 and 15 March 1979, document no 5581/79 of 19 March 1979, p. 13a. 18 – See Case C-310/90 Egle [1992] ECR I-177, paragraph 12, in which the legislative history was adduced only for the purpose of confirming the interpretative result arrived at through the application of other methods. 19 – Case C-292/89 Antonissen [1991] ECR I-745, paragraph 18 and Case C-402/03 Skov and Others [2006] ECR I-0000, paragraph 42; the Court had already held in its judgment in Case 429/85 Commission v Italy [1988] ECR 843, at paragraph 9, that an interpretation based on a Council declaration cannot give rise to an interpretation different from that resulting from the actual wording of the directive concerned. 20 – Case 237/84 Commission v Belgium [1986] ECR 1247, paragraph 17. 21 – See, inter alia, Case C-424/97 Haim [2000] ECR I-5123, paragraph 36; Joined Cases C-46/93 and 48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, paragraph 51; and Case C-127/95 Norbrook Laboratories [1998] ECR I-1531, paragraph 107. 22 – Case C-392/93 British Telecommunications [1996] ECR I-1631, paragraph 41; Joined Cases C-283/94, C-291/94 and C-292/94 Denkavit and Others [1996] ECR I-5063, paragraph 49; and Case C-319/96 Brinkmann [1998] ECR I-5255, paragraph 26. 23 – Case C-150/99 Stockholm Lindöpark [2001] ECR I-493, paragraph 38. 24 – See Francovich, cited in footnote 21, paragraphs 40 and 44, and Case C-140/97 Rechberger and Others [1999] ECR I-3499, paragraphs 22 and 23. 25 – See Francovich, cited in footnote 21, paragraphs 13 and 14. 26 – Brassérie du Pêcheur, cited in footnote 21, paragraph 55; Rechberger and Others, cited in footnote 24, paragraph 50; British Telecommunications, cited in footnote 22, paragraph 42, and Joined Cases C-178/94, C-179/94 and C-188/94 to C-190/94 Dillenkofer and Others [1996] ECR I-4845, paragraph 25. 27 – Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 28, and Dillenkofer and Others, cited in footnote 26, paragraph 25. 28 – Total failure to adopt implementing measures might in itself suggest that the Member State has manifestly and gravely disregarded the limits on the exercise of its powers (see Dillenkofer and Others, cited in footnote 26, paragraph 26). 29 – See Brasserie du Pêcheur and Factortame, cited in footnote 21, paragraphs 55 and 56, and, most recently, Case C-224/01 Köbler [2003] I-10239, paragraph 55. These criteria would have to be considered by the national court even if one were to take the view that in the present case the discretion of the legislature was considerably reduced or is nil. According to the Court’s case-law, in such a situation a mere infringement of Community law may, as noted above, be a sufficiently serious breach but is not necessarily one. In order to determine whether the breach is sufficiently serious, the national court must take account of those criteria also in that case. See Haim, cited in footnote 21, paragraph 41 et seq. and Case C-118/00 Larsy [2001] ECR I-5063, paragraph 39. 30 – British Telecommunications, cited in footnote 22, paragraph 43. 31 – Opinion of Advocate General Lenz in Commission v Italy, cited in footnote 8, point 48. 32 – The position may be different with regard to the question whether the failure by a court of final jurisdiction to make a reference to the Court might constitute a sufficiently serious breach of Community law. 33 – Brasserie du Pêcheur and Factortame, cited in footnote 21, paragraph 56, and Köbler, cited in footnote 29, paragraph 55. In this connection, the existence of conduct on the part of a Community institution which has contributed to the breach may be treated as a sub-category of the criterion of excusable error of law. 34 – Commission report of 15 June 1995 concerning the transposition of Directive 80/987 (COM(95) 164 final). 35 – The report concludes its examination of the United Kingdom provisions with the words: ‘the abovementioned rules appear to meet the requirements of Article 8’. 36 – Compare, for instance, p. 46 of the Commission report (cited in footnote 34) in regard to the Spanish implementing measures: ‘Spanish law respects the provisions of Article 8 of the Directive’.