Case C-354/02: Action brought on 2 October 2002 by the Commission of the European Communities against the Republic of Austria
Date: 2002-12-07
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, consumer protection, foodstuff, fruit, national implementing measure, pesticide residue, plant health legislation, vegetable

7.12.2002

EN

Official Journal of the European Communities

C 305/11

zum Arbeitnehmer-Entsendegesetz’ (notes on the Law concern-
ing the posting of employees abroad), in the still unchanged
version thereof, is provided to employers and forms the basis
of administrative controls by the competent authorities.

Responding in detail to arguments put forward by the German
Government, the Commission maintains in particular that:

— the power conferred on Member States, in accordance
with the second paragraph of Article 3(1) of Directive
‘minimum pay’
96/71/EC,
does not also include competence to determine the
methodology to be followed in carrying out the compara-
tive examination;

to define the concept of

— although determination of the criterion of ‘accrual’ may
be relevant for the purposes of defining the concept of
‘minimum pay’, the problem of wage elements the accrual
of which is deferred (e.g.
the 13th month’s salary,
Christmas bonuses) cannot — as provided for in the
‘Merkblatt’ — be resolved by simply leaving such matters
out of account;

— control problems arising in connection with such wage
elements are to be resolved bilaterally between the
Member States concerned, and may not
lead to a
restriction of freedom to provide services;

— a Member State which has not included supplementary
holiday pay as part of the minimum pay defined by
it may not compensate for that ‘lacuna’ by treating
contributions actually paid to an institution in the
Member State where the employer is established which is
comparable to a German holiday fund as an allowance
which must be left out of account.

( 1) OJ 1997 L 18, p. 1.

The applicant claims that the Court should:

1. Declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to implement
Commission Directive 2000/42/EC of 22 June 2000 (1)
amending the Annexes to Council Directives 86/362/
EEC, 86/363/EEC and 90/642/EEC on the fixing of
maximum levels for pesticide residues in and on fruit and
vegetables and certain products of plant origin, including
fruit and vegetables respectively, or in failing to notify the
Commission of their adoption, or in failing to notify the
Commission of their adoption, the Republic of Austria
has failed to fulfil its obligations under that directive;

2. Order the Republic of Austria to pay the costs.

Pleas in law and principle arguments

the Member States to implement the
The obligation of
directives (Article 249(3) EC) includes an obligation to comply
with the time-limits laid down in the directives. In the present
case that time-limit expired on 28.02.2001, by which time the
Republic of Austria had not adopted the necessary measures.

(1) OJ 2000 L 158, p. 51.

Action brought on 2 October 2002 by the Commission
of the European Communities against the Republic of
Austria

(Case C-353/02)

(2002/C 305/17)

Action brought on 2 October 2002 by the Commission
of the European Communities against the Republic of
Austria

(Case C-354/02)

(2002/C 305/18)

An action against the Republic of Austria was brought
before the Court of Justice of the European Communities
on 2 October 2002 by the Commission of the European
Communities, represented by Gerald Braun, of its legal service,
acting as Agent, with an address for service in Luxembourg at
the office of Luis Escobar Guerrero, of the legal service, Wagner
Centre C 254, Luxembourg-Kirchberg.

An action against the Republic of Austria was brought
before the Court of Justice of the European Communities
on 2 October 2002 by the Commission of the European
Communities, presented by Gerald Braun, of its legal service,
acting as agent, with an address for service in Luxembourg at
the office of Luis Escobar Guerrero, of the legal service, Wagner
Centre C 254, Luxembourg-Kirchberg.

C 305/12

EN

Official Journal of the European Communities

7.12.2002

The applicant claims that the Court should:

1. Declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to implement
Commission Directive 2000/57/EC of 22 September
2000 (1) amending the Annexes to Council Directive 76/
895/EEC and 90/642/EEC on the fixing of maximum
levels for pesticide residues in and on fruit and vegetables
and certain products of plant origin, including fruit and
vegetables respectively, the Republic of Austria has failed
to fulfil its obligations under that directive;

2. Order the Republic of Austria to pay the costs.

Pleas in law and principle arguments

maximum levels for pesticide residues in and on fruit and
vegetables and certain products of plant origin, including
fruit and vegetables respectively, or in failing to notify the
Commission of their adoption, the Republic of Austria
has failed to fulfil its obligations under that directive;

2. Order the Republic of Austria to pay the costs.

Pleas in law and principle arguments

The obligation of
the Member States to implement the
directives (Article 249(3) EC) includes an obligation to comply
with the time-limits laid down in the directives. In the present
case that time-limit expired on 31.03.2001, by which time the
Republic of Austria had not adopted the necessary measures.

The obligation of the Member States do implement the
directives (Article 249(3) EC) includes an obligation to comply
with the time-limits laid down in the directives. In the present
case that time-limit expired on 31 March 2001, by which time
the Republic of Austria had not adopted the necessary
measures.

(1) OJ 2000 L 244, p. 78.

( 1) OJ 2000 L 244, p. 76.

Reference for a preliminary ruling by the tribunal du
travail de Bruxelles by judgment of that Court of 24 Sep-
tember 2002 in the case of Yamina Haddad against Belgian
State

Action brought on 3 October 2002 by the Commission
of the European Communities against the Republic of
Austria

(Case C-358/02)

(2002/C 305/20)

(Case C-355/02)

(2002/C 305/19)

An action against the Republic of Austria was brought
before the Court of Justice of the European Communities
on 3 October 2002 by the Commission of the European
Communities, represented by Gerald Braun, of its legal service,
acting as Agent, with an address for service in Luxembourg at
the office of Luis Escobar Guerrero, of the legal service, Wagner
Centre C 254, Luxembourg-Kirchberg.

The applicant claims that the Court should:

1. Declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to implement
Commission Directive 2000/58/EC of 22 September
2000 (1) amending the Annexes to Council Directive 86/
362/EEC, 86/363/EEC and 90/642/EEC on the fixing of

Reference has been made to the Court of
Justice of the
European Communities by judgment of the tribunal du travail
de Bruxelles (Labour Court, Brussels) of 24 September 2002,
received at the Court Registry on 7 October 2002, for a
preliminary ruling in the case of Yamina Haddad against
Belgian State on the following question:

Must Article 41(1) of the Cooperation Agreement signed on
27 April 1976 between the Member States of the European
Economic Community and the Kingdom of Morocco, as
approved on behalf of the Community by Regulation No 2211/
78 of 26 September 1978 (1), be interpreted, inter alia in the
light of Article 14 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms
signed in Rome on 4 November 1950 and Article 1 of Protocol
No 1 thereto of 20 March 1952, as precluding a Member State
from refusing to grant a benefit such as a disability allowance,
as provided under its laws in favour of its nationals and
citizens of the European Union, to a Moroccan national who
is a student and the wife of an unemployed Moroccan national,