Case C-344/01: Action brought on 12 September 2001 by the Federal Republic of Germany against the Commission of the European Communities
Date: 2001-11-10
Institutions: Court of Justice
Subjects: EAGGF Guarantee Section, EU financing, European Commission, Germany, action for annulment (EU), suckler cow

C 317/16

EN

Official Journal of the European Communities

10.11.2001

Pleas in law and main arguments

The pleas in law and main arguments are similar to those
advanced in Case C-323/01 (2); the time-limit for transposition
expired on 5 June 2000.

(1) OJ L 330 of 5.12.1998, p. 1.
(2) See page 12 of this Official Journal.

Action brought on 12 September 2001 by the Federal
Republic of Germany against the Commission of the
European Communities

(Case C-344/01)

(2001/C 317/30)

Reference for a preliminary ruling from the Juzgado de lo
Social No 33 de Madrid by an order of 3 September
2001 in the case of Marı´a Paz Merino Go´ mez against
Continental Industrias riel Caucho S.A.

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 12 September 2001 by the Federal Republic
of Germany represented by Wolf-Dieter Plessing, Ministerialrat
and Moritz Lumma, Oberregierungsrat, Bundesministerium
der Finanzen, Graurheindorfter Str. 108, D-53117 Bonn.

(Case C-342/01)

(2001/C 317/29)

Reference has been made to the Court of Justice of the
European Communities by an order of the Juzgado de lo Social
No 33 de Madrid (Social Court, Madrid) of 3 September 2001,
which was received at the Court Registry on 12 September
2001, for a preliminary ruling in the case of Marı´a Paz Merino
Gro´ mez against Continental Industrias riel Caucho S.A.. The
Juzgado de lo Social No 33 de Madrid asks the Court of Justice
to rule on the following questions:

1. Where collective agreements between an employer and
workers’ representatives fix the timing of leave for the
entire workforce, and where the dates in question coincide
with those of a worker’s maternity leave, do Article 7(1)
of Directive 93/104 (1), Article 11 (2) (a) of Directive
92/85 (2) and Article 5(1) of Directive 76/207 (3) guaran-
tee that worker’s entitlement to take annual leave during
a period other than the one agreed, which does not
coincide with her period of maternity leave?

2.

If the first question is answered in the affirmative, what is
the substantive scope of the entitlement to annual leave?
Does it cover exclusively the four weeks’ leave referred to
in Article 7(1) of Directive 93/104, or does it extend to
the thirty calendar days laid down by national legislation,
in Article 38(1) of Royal Decree-Law 1/95, the Workers’
Statute?

(1) Council Directive 93/104/EC of 23 November 1993 concerning
certain aspects of the organisation of working time (OJ L 307 of
13.12.1993, p. 18).

(2) Council Directive 92/85/EEC of 19 October 1992 on the introduc-
tion 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 L 348 of 28.11.1992,
p. 1).

(3) 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 L 39 of 14.2.1976, p. 40).

The applicant claims that the Court should:

1. Annul

the Commissions decision of 11 July 2001
(K(2001) 1795 final) excluding from Community finan-
cing certain expenditure incurred by the Member States
under the Guarantee Section of the European Agricultural
Guidance and Guarantee Fund (EAGGF) (1).

2. Order the defendant to pay the costs.

Pleas in law and main arguments

— Infringement of an essential procedural requirement
(inadequate communication of the facts). The application
of conclusions reached on the three Länder which were
examined for the purposes of suckler-cow premiums to
the other Länder which were not examined does not
appear to be justified per se having regard to the decentrali-
sed administrative system required by constitutional law
in Germany. The Federal Government, rather, regards the
grounds for refusing the premiums to those Länder which
were not examined in this case to be wholly unfounded
on a number of grounds. For that reason, similar
conclusions were not reached in the area of suckler-cow
premiums following very recent studies, that is to say, in
Brandenburg and Niedersachsen in 1996 and in Rhein-
land-Pfalz in 1999.

Therefore, by reversing the burden of proof so that it
fell on Germany without any concrete reasons,
the
its obligation to provide
Commission failed to fulfil
evidence of an infringement of Community law in the
area of suckler-cow premiums.

10.11.2001

EN

Official Journal of the European Communities

C 317/17

— Infringement of the principles of proper administration.
In spreading the burden over all the Länder, the Com-
mission departed from an administrative practice which
had pertained for many years without any reason. In the
light of the legal scope of such a new procedure, it would
have been necessary on grounds of proper administration,
foreseeability and transparency for the Commission to
give notice of its change of policy and at least an outline
thereof by way of a communication to the Member
States. That applies a fortiori in so far as the question of
supra-Länder burdens are of great political and legal
significance in other Member States too, in particular
those with federal or quasi-federal decentralised adminis-
trative structures such as, for example, Austria and Spain.
Beyond that, the question of the conditions on which it
is possible to assume errors in a Member State as a whole
on the basis of the conclusions of particular studies is of
vital importance to all the other Member States too.

— Infringement of Article 10 EC. The duty of loyal co-
operation to which the Community institutions are
subject involves a duty to take into account the underlying
administrative structures of the Member States. Respect
for the fact that the Federal Republic of Germany is
divided into autonomous Länder requires that financial
corrections in respect of individual Länder can only be
made where the EAGGF has reached its own conclusions
as to a breach of Community law to the detriment of the
Community budget in those Länder.

(1) Commission Decision 2001/557/EC (OJ L 200, 25.7.2001, p. 28).

Action brought on 17 September 2001 by the Com-
mission of the European Communities against the Italian
Republic

(Case C-350/01)

(2001/C 317/31)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 17 Septem-
ber 2001 by the Commission of the European Communities,
represented by Gregorio Valero Jordana and Roberto Amorosi,
acting as Agents.

The applicant claims that the Court should:

— declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Council Directive 1999/32/EC of 26 April 1999 relating

to a reduction in the sulphur content of certain liquid
fuels and amending Directive 93/12/EEC (1), or, in any
event, by failing to communicate the same to the
Commission, the Italian Republic has failed to fulfil its
obligations under that directive;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

Article 249 EC, according to which directives are to be binding,
as to the result to be achieved, upon each Member State to
which they are addressed, implies an obligation for the Member
States to comply with the time-limits for transposition laid
down in the directives. That time-limit expired on 1 July 2000
without the Italian Republic having enacted the provisions
necessary to comply with the directive mentioned in the
Commissions pleadings.

(1) OJ L 121 of 11.5.1999, p. 13.

Action brought on 18 September 2001 by Commission
of the European Communities against French Republic

(Case C-351/01)

(2001/C 317/32)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 18 Septem-
ber 2001 by the Commission of the European Communities,
represented by M. Patakia, acting as Agents, with an address
for service in Luxembourg.

The applicant claims that the Court should:

1. Declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Directive 98/5/EC of the European Parliament and of the
Council of 16 February 1998 to facilitate practice of the
profession of lawyer on a permanent basis in a Member
State other than that in which the qualification was
obtained (1), the French Republic has failed to fulfil its
obligations under that directive; and

2. Order the French Republic to pay the costs.