Opinion of Mr Advocate General Saggio delivered on 10 February 2000. - Commission of the European Communities v French Republic. - Failure to fulfil obligations - Failure to transpose Directive 94/33/EC. - Case C-45/99.



European Court reports 2000 Page I-03615



Opinion of the Advocate-General

1. By application lodged on 16 February 1999, the Commission accuses the French Republic of having failed to transpose within the prescribed period into its legal system Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work (hereinafter the directive), or - in the alternative - of having failed to communicate the measures taken to transpose the directive.

Relevant Community and national legislation

2. The directive, which was adopted on the basis of Article 118a of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) lays down minimum requirements designed to protect young persons in the workplace. Article 17(1)(a) and (c) provides that the Member States are to bring into force, not later than 22 June 1996, the provisions necessary to comply with the directive itself or ensure, by that date at the latest, that the two sides of industry introduce the requisite provisions by means of collective agreements and forthwith inform the Commission thereof. Article 17(2) further requires the Member States to make a reference to the directive in the national implementing provisions.

3. Labour law in force in France contains numerous provisions relating to the sector governed by the directive. In particular the Code du Travail (Labour Code) (Articles D 211, L 211 to L 213, L 221, R 234 and R 241) relates to the fields covered by the directive, while Law No 97-1051 of 18 November 1997 contains rules specific to the maritime sector.

Facts and procedure

4. By letter of 16 January 1997, the Commission, not having received any information from the French Government on the transposition of the directive, requested that Government, pursuant to Article 169 of the EC Treaty (now Article 226 EC), to submit its observations in that regard. The French Government replied by way of a memorandum from its Permanent Representative dated 13 March 1997, which the Commission found to be inadequate. It therefore sent on 12 January 1998 a reasoned opinion to the French Republic, pursuant to the abovementioned Article 169 of the EC Treaty, according to which having failed to adopt the provisions ... necessary to comply with the directive ..., France has failed to fulfil its obligations under that directive and called on it to comply therewith within two months from notification. The French Government replied to that reasoned opinion by a note of 13 March 1998 from its Permanent Representative which again the Commission deemed inadequate.

5. Accordingly, the Commission lodged, on 16 February 1999, an application in accordance with Article 169(2) of the EC Treaty, claiming that the Court should:

(a) declare that, by failing within the prescribed period to adopt, alternatively to communicate to the Commission, the laws, regulations and administrative measures necessary in order fully to comply with Council Directive 94/33/EC of 22 June 1994 on the protection of young persons at work, the French Republic has failed to fulfil its obligations under the EC Treaty and under that directive;

(b) order the French Republic to pay the costs.

6. The French Republic did not make any specific comment in the defence lodged on 4 May 1999, but merely stated that the French Government will send as soon as possible to the Court of Justice and the Commission a draft Law on the duration of work, currently being drawn up by the relevant authority.

Failure to fulfil obligations

7. According to the Commission, the French Republic had not transposed fully the directive into its legal system, thus infringing Article 17(1)(a) which sets 22 June 1996 as the deadline for transposition, nor had it communicated the adoption of the implementing measures, thereby infringing its obligation under Article 17(1)(c).

8. The French Government submits that most of the legislative provisions of the directive are already contained in national legislation already in force, and that therefore such legislation requires only minimum amendment, specifically only with regard to those provisions not embodied in French law. The French Government further states that it intends to adopt such amendments in the near future and that the relevant measures will be communicated as soon as possible to the Court and to the Commission.

9. I take the view that in the present case there has been failure to fulfil obligations. The French Government expressly acknowledges that, three and a half years after the expiry of the deadline for adoption of the measures to implement the directive, many of its provisions are still not embodied in the applicable legislation at the time of the entry into force of the directive. The matter concerns, as may be seen from the memoranda sent to the Commission by the French Permanent Representative on 13 March 1997 and 13 March 1998, how long adolescents aged 14 to 16 years may work during school holidays, minimum daily rest periods for adolescents aged 14 to 16 years and adolescents aged 16 to 18 years and the weekly rest periods for young workers, provision for a compulsory 30-minute break every four-and-a-half hours of work and the application of the directive to adolescents undergoing training in undertakings without an employment contract. On the basis of these factors I believe that clear breaches of the directive have been established inasmuch as some parts of it have no equivalent in French legislation in force and that, in any event, the Commission has not been informed of the adoption of appropriate implementing measures in the matter.

Moreover, so far as concerns the provisions in force that are claimed to correspond to the requirements of the directive, the mere prior existence in the law of a Member State of legislation corresponding to what the directive seeks to have transposed does not exonerate a Member State either from creating a legislative framework which ensures - so far as concerns legal certainty - the complete and effective transposition of the directive itself by means of the adjustment of the entire area of law contemplated by the directive, or from the obligation to communicate to the Commission the adoption of any provisions.

I would also observe that in the present case the directive imposes the obligation on the Member State of inserting in the implementing measures an express reference to it and that, according to settled case-law, the provision of such an obligation is in itself such as to preclude any national legislation already in existence from carrying out the transposition of a directive into the legal system of a Member State. The alleged failure to fulfil obligations is also confirmed from this angle.

Costs

10. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for. Since the Commission has applied for costs, I propose that the French Republic, which has been unsuccessful in its pleadings, be ordered to pay the costs.

Conclusion

11. In the light of the foregoing considerations, I propose that the Court:

(1) declare that, by failing to adopt, within the prescribed period, the provisions necessary to comply with Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work, the French Republic has failed to fulfil its obligations under that directive;

(2) order the French Republic to pay the costs.