Case C-223/02: Action brought on 17 June 2002 by the Republic of Finland against the European Parliament and the Council of the European Union
Date: 2002-08-24
Institutions: Court of Justice
Subjects: European Parliament, Finland, action for annulment (EU), arrangement of working time, drivers, road transport, self-employed person

C 202/10

EN

Official Journal of the European Communities

24.8.2002

Action brought on 17 June 2002 by the Republic of
Finland against the European Parliament and the Council
of the European Union

Under the third paragraph of Article 5 EC, action by the
Community is not to go beyond what is necessary to achieve
the objectives of the Treaty.

(Case C-223/02)

(2002/C 202/12)

An action against the European Parliament and the Council of
the European Union was brought before the Court of Justice
of the European Communities on 17 June 2002 by the
Republic of Finland, represented by T. Pynnä, acting as Agent,
with an address for service in Luxembourg.

Finland claims that the Court should:

— Annul Directive 2002/15/EC (1) of the European Parlia-
ment and of the Council of 11 March 2002 on the
organisation of the working time of persons performing
mobile road transport activities, in so far as it concerns
self-employed drivers;

— Order the Parliament and the Council to pay the costs.

Pleas in law and main arguments

F i r s t p l e a i n l a w : l a c k o f c o m p e t e n c e

Finland considers that by including self-employed drivers in
the scope of the directive the Parliament and the Council
exceeded their powers.

Article 71 EC and Article 137(2) EC were used as legal basis
for the directive. In Finland’s opinion, the question of the legal
basis must be assessed separately according to the groups
to mobile employees and self-
concerned, with respect
employed drivers. Different aims were in the background to
the proposed legislation concerning the working time of self-
employed drivers and of mobile employees. In the Com-
mission’s original proposal the directive was based, according
to the first recital in the preamble, specifically on Article 71
EC with respect to self-employed drivers.

Finland considers that neither of the provisions of the Treaty
used as legal basis confers power on the Community to
legislate on the working time of self-employed persons.

S e c o n d p l e a i n l a w : b r e a c h o f t h e p r i n c i p l e
o f p r o p o r t i o n a l i t y

Finland considers that by including self-employed drivers in
the scope of the directive the Parliament and the Council
infringed the principle of proportionality under the third
paragraph of Article 5 EC.

According to settled case-law of the Court of Justice, the
principle of proportionality requires that legislation, decisions
and other measures of the Community institutions must not
exceed what is appropriate and necessary for attaining the
objectives pursued. According to the Court of Justice, it is clear
that where there is a choice between several appropriate
measures, the least restrictive one must be chosen, and that
the disadvantages caused by measures must not be too great
in relation to the objectives pursued.

T h i r d p l e a i n l a w : b r e a c h o f t h e p r i n c i p l e o f
f r e e d o m t o p u r s u e a n o c c u p a t i o n

Finland considers that by including self-employed drivers in
the scope of the directive the Parliament and the Council
infringed the principle of the freedom to pursue an occupation.

In the common constitutional tradition of the Member States
it is regarded as an essential part of the freedom to pursue an
occupation that an operator may decide for himself how long
to work for the benefit of his undertaking and when to work.
It is part of the basic nature of an undertaking that the operator
may invest his work as well as his capital in his undertaking.

According to settled case-law of the Court of Justice, the
freedom to pursue an occupation is a general principle of
Community law. Freedom to pursue an occupation is also
recognised in the Charter of Fundamental Rights of
the
European Union. Under Article 15(1) of the Charter everyone
has the right to engage in work and to pursue a freely chosen
or accepted occupation.

According to the case-law of the Court of Justice, the freedom
to pursue an occupation may be restricted only on condition
that the restriction is in fact in accordance with Community
objectives in the public interest and does not mean a dispro-
portionate and intolerable interference which would endanger
the very substance of the rights guaranteed.

F o u r t h p l e a i n l a w : i m p e d i n g t h e a c t i v i t y o f
s m a l l a n d m e d i u m - s i z e d u n d e r t a k i n g s

Finland considers that by including self-employed drivers in
the scope of the directive the Parliament and the Council
infringed Article 137(2) EC and Article 157 EC.

Article 137(2) EC requires that directives adopted under that
provision must avoid imposing administrative, financial and
legal constraints in a way which would impede the activity of
small and medium-sized undertakings. Article 157 EC for its
part requires the Community to promote in its action the
operation of small and medium-sized undertakings.

24.8.2002

EN

Official Journal of the European Communities

C 202/11

The restrictions in the directive in fact affect specifically small
and medium-sized undertakings. Restricting working time
would weaken the competitive position of those undertakings,
since their situation differs from that of the owner of a large
undertaking. It follows from the division of work within a
large undertaking that the persons responsible for driving can
use the whole time permitted by the directive for driving.
The management and development of the business are the
responsibility of different persons, whose working time the
provisions of the directive do not restrict in any way.

F i f t h p l e a i n l a w : f a i l u r e t o c o m p l y w i t h t h e
d u t y t o s t a t e r e a s o n s

Finland considers that by including self-employed drivers in
the scope of the directive the Parliament and the Council
infringed Article 253 EC.

According to settled case-law of the Court of Justice, the
obligation to state reasons under Article 253 EC is determined
by the nature of the legislation, decision or other measure. The
statement of reasons must disclose clearly and unambiguously
the reasoning of the Community institution which has adopted
the measure, so that the reasons for the measure are clear to
those concerned by it and the Community court can perform
its function of review.

Finland considers that those requirements are not satisfied in
so far as the directive concerns self-employed drivers.

(1) OJ L 80 of 23.3.2002, p. 35.

Reference for a preliminary ruling by the Korkein Oikeus
by order of that Court of 14.06.2002 in the case of
Heikki Antero Pusa against Osuuspankkien Keskinäinen
Vakuutusyhtiö

(Case C-224/02)

(2002/C 202/13)

Reference has been made to the Court of Justice of the
the Korkein Oikeus
European Communities by order of
(Supreme Court) of 14.6.2002, received at the Court Registry
on 17.6.2002, for a preliminary ruling in the case of Heikki
Antero Pusa against Osuuspankkien Keskinäinen Vakuutus-
yhtiö on the following question:

Does Article 18 of
the EC Treaty or any other rule of
Community law preclude national legislation under which, in
an attachment carried out for the purpose of enforcing a
judgment concerning a money debt, that part of the pension
payable at regular intervals to the debtor which the attachment
may concern is determined by deducting from the pension the

income tax prepayment levied in the Member State in question,
whereas the income tax which a debtor resident in another
Member State is obliged to pay in his State of residence is not
taken into account as a deduction, so that the attachable part
is greater in the latter case in being determined on the basis of
the gross and not the net amount of the pension?

Reference for a preliminary ruling by the Tribunale di
Gela — Ufficio del Giudice per le Indagini Preliminari by
order of that Court of 19 June 2002 in criminal proceed-
ings against Marco Antonio Saetti and Andrea Frediani

(Case C-235/02)

(2002/C 202/14)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Gela —
Ufficio del Giudice per le Indagini Preliminari (Gela District
Court, Chambers of
the Judge in charge of Preliminary
Inquiries) of 19 June 2002, received at the Court Registry on
26 June 2002, for a preliminary ruling in criminal proceedings
against Marco Antonio Saetti and Andrea Frediani on the
following questions:

1. Does pet coke fall within the definition of ‘waste’ as
provided in Article 1 of Directive 75/442/EEC? (1)

2. Does use of pet coke as a fuel constitute ‘recovery’ within
the meaning of Article 1 of Directive 75/442/EEC?

3. Does pet coke, when used as a fuel for production
purposes, come within the category of waste which a
Member State may exclude from the application of the
Community, following the adoption of specific rules in
accordance with Article 2 of Directive 75/442/EEC?

4. Does permitting the use of petroleum coke at the place
of production even for combustion processes intended
for the generation of electric or thermal energy for
purposes unconnected with refining processes, subject to
the condition that emissions must be within the limits
laid down in the relevant provisions, even where its
sulphur content exceeds 3 % of mass, constitute a
necessary and sufficient measure to ensure that such
waste is recovered without endangering human health
and without the use of processes or methods likely harm
the environment, in accordance with Article 4 of Directive
75/442/EEC?

(1) OJ L 194 of 25.7.1975, p. 39.