Case C-55/02: Action brought on 22 February 2002 by Commission of the European Communities against Portuguese Republic
Date: 2002-04-20
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, cessation of trading, collective dismissal, job cuts, worker consultation, worker information

C 97/6

EN

Official Journal of the European Communities

20.4.2002

Action brought on 14 February 2002 by the Italian
Republic against the Commission of the European Com-
munities

The Italian Government considers that it is constrained to
challenge the Commission’s decision in order to prevent the
definitive nature of that decision from constituting an obstacle
to the effects of the judgment to be delivered in Case C-231/00.

(Case C-54/02)

(2002/C 97/12)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 14 February 2002 by the Italian Republic,
represented by Umberto Leanza, acting as Agent, assisted by
Gianni De Bellis, avvocato dello Stato.

The applicant claims that the Court should:

— annul Commission Decision 2001/889/EC of 12 Decem-

ber 2001 in so far as it:

(a)

(b)

(c)

(d)

provides for a reduction in the advances on agricul-
tural expenditure, taking into account the interest
relating thereto;

alternatively, provides definitively rather than provi-
sionally for a reduction in the advances on agricultu-
ral expenditure, taking into account the interest
relating thereto;

to

fails
reimburse
LIT 45 145 363 199
same having been improperly withheld;

to
(EUR 23 315 634,29),

Italy

the

sum of
the

incorrectly determines the amount of any interest
which may be due to the Fund without taking
account of the reductions made in the advances;

the definitive nature of

In addition to challenging the reduction in the advances and
the Commission’s
in any event
determination, the Italian Government seeks annulment of the
contested decision on the ground that it infringes Articles 3, 5
and 8 of Regulation (EEC) No 729/70 (1) and inasmuch as (in
relation to the 1995/96 period) it provides for reductions in
advances which are greater than the levies which are to be paid
to it.

1995/96 and 1996/97 periods: claim for default interest

In calculating the amount of the interest due on the additional
levy payable each month for the period following the prescri-
bed date (1 September 1996 and 1 September 1997 respecti-
vely), the Commission has correctly excluded from the capital
sum the amounts declared to the EAGGF from 1 September
1996 (and 1997) to December 2001; however, it has not
taken account of the reductions in the advances made in the
course of 1997.

For the 1995/96 period, the Commission, working on the
basis of the reductions in the advances granted to Italy for
agricultural expenditure, has already obtained for the assets of
the Fund the entire amount of the additional levies (indeed, the
reduction in the advance was even greater).

Likewise, the reduction in the advances for the 1996/97
period, although not sufficient to cover the entire amount of
the additional levies, was not taken into account in the interest
calculation.

— order the Commission of the European Communities to

pay the costs.

(1) OJ, English Special Edition 1970(1), p. 218.

Pleas in law and main arguments

1996/97 period: reduction in advances and refusal of financing

In Case C-231/00 Lattepiù the Tribunale Amministrativo
Regionale per il Lazio has referred for a preliminary ruling
under Article 234 EC a question on the correct interpretation
of the Community rules applicable in the matter and on
whether the national rules should be disapplied. In those
circumstances, the Commission’s decision to exclude certain
expenditure by Italy from Community financing appears
unacceptable on account of its definitive nature, which does
not seem to take account of the question referred for a
preliminary ruling in the pending Case C-231/00, referred to
above.

Action brought on 22 February 2002 by Commission of
the European Communities against Portuguese Republic

(Case C-55/02)

(2002/C 97/13)

An action against
the Portuguese Republic was brought
before the Court of Justice of the European Communities on
the European
22 February 2002 by the Commission of
Communities, represented by Jörn Sack and Miguel França,
acting as Agents, with an address for service in Luxembourg.

20.4.2002

EN

Official Journal of the European Communities

C 97/7

The applicant claims that the Court should:

— Declare that, by restricting the concept of ‘collective
redundancies’ to redundancies for structural, technologi-
cal or cyclical reasons, and by failing to extend the
concept to redundancies for any other reason not specific
to the workforce itself, the Portuguese Republic has failed
to fulfil
its obligations under Articles 1, 6 and 7 of
Directive 98/59/EC; (1)

— Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The Commission takes the view that the concept of collective
redundancies in Portuguese law does not cover all the cases of
collective redundancies envisaged by the directive. For exam-
ple, it does not cover redundancies declared by an employer
for reasons unrelated to the workforce where the undertaking
is wound up or liquidated, sold, the premises burnt down or
other cases of force majeur, or where the undertaking has
ceased trading on the death of its owner. The current situation
not only undermines the protection of workers,
it is also
manifestly contrary to the principle of legal certainty. Without
calling in question the constitutional provisions which guaran-
tee workers’ right to work, the Commission points out that in
any event that does not make good the inadequate transpo-
sition of a directive whose purpose is to strengthen the
protection of workers in the event of collective redundancies
and to provide workers with certain guarantees as regards
observance of
the rules and procedure for redundancies.
Thirdly, by relying on the case law and the rules of Portuguese
law according to which the directive would not be applicable
to collective redundancies for reasons not specific to the
workforce, since such cases would be time-barred, the Portug-
uese authorities have improperly restricted the scope of the
directive. Finally, the Commission considers that to accept the
argument that application of the rules laid down in the
directive is ‘not viable’ in those cases where termination of
the employment contract which under Portuguese law is
considered to limit rights of action, would amount to acknowl-
edging that a Member State may invoke provisions of domestic
law to justify failure to fulfil its obligations under a Community
directive, which is manifestly contrary to Community law.

(1) Council Directive 98/59/EC of 20 July 1998 on the approximation
of the laws of the Member States relating to collective redundan-
cies. OJ 1998 L 225, p. 16.

Action brought on 25 February 2002 by the Commission
of the European Communities against the Hellenic Repub-
lic

(Case C-59/02)

(2002/C 97/14)

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 25 February
2002 by the Commission of the European Communities,
represented by Michel Nolin and Minas Konstantinidis, Legal
Advisers.

The Commission claims that the Court should:

— declare that, by not adopting or, in any event, by failing
to communicate to the Commission (all)
the laws,
regulations and administrative provisions necessary to
comply with Council Directive 1999/86/EC (1) of 11 No-
vember 1999 adapting to technical progress Directive
76/763/EEC on the approximation of the laws of the
Member States relating to passenger seats for wheeled
agricultural or forestry tractors, the Hellenic Republic has
failed to fulfil
its obligations under Article 4 of that
directive;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

In accordance with the third paragraph of Article 249 EC,
directives are binding, as to the result to be achieved, upon
each Member State to which they are addressed.

Under the first paragraph of Article 10 EC, Member States are
to take all appropriate measures, whether general or particular,
to ensure fulfilment of the obligations arising out of the Treaty
or resulting from action taken by the institutions of the
Community.

It is not disputed by the Hellenic Republic that it must adopt
measures to comply with the abovementioned directive.

The Commission records that until now, despite the expiry on
1 January 2001 of the period laid down, the Hellenic Republic
has not adopted the appropriate measures for the full incorpor-
ation of the directive at issue into Greek law.

(1) OJ L 297, 18.11.1999, p. 22.