Case C-341/02: Action brought on 25 September 2002 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2002-12-07
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, building industry, labour mobility, minimum pay, provision of services, remuneration of work, transnational corporation

C 305/10

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Official Journal of the European Communities

7.12.2002

Netherlands Government further points out that, to date,
the Commission has been unwilling to grant access to the
German documents which it clearly had in its possession
and on which, inter alia, it based its assessment of the
alleged shortcomings within the German destruction
plants.

( 1) OJ 1997 L 62.

Action brought on 25 September 2002 by the Com-
mission of the European Communities against the Federal
Republic of Germany

(Case C-341/02)

(2002/C 305/16)

Action brought on 23 September 2002 by the Com-
mission of the European Communities against the Portu-
guese Republic

(Case C-339/02)

(2002/C 305/15)

An action against the Portuguese Republic was brought
before the Court of Justice of the European Communities on
23 September 2002 by the Commission of the European
Communities,
represented by António Caeiros, acting as
Agent, with an address for service in Luxembourg.

The applicant claims that the Court should:

— Declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations and
administrative provisions necessary to comply with
Directive 1999/103/EC of the European Parliament and
of the Council of 24 January 2000 amending Council
Directive 80/181/EEC on the approximation of the laws
of the Member States relating to units of measurement (1),
the Portuguese Republic has failed to fulfil its obligations
under Article 2(1) of the abovementioned Directive 1999/
103/EC; and

— In the alternative, declare that, by failing to inform
the Commission immediately of such measures, the
Portuguese Republic has failed to fulfil its obligations
under Article 2(1) of the abovementioned Directive 1999/
103/EC; and

— Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The time-limit for implementation expired on 9 February
2001.

( 1) OJ 2000 L 34, p. 17.

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 25 September 2002 by the Commission of
the
European Communities, represented by J. Sack and H. Kreppel,
with an address for service in Luxembourg.

The Commission of the European Communities claims that
the Court should:

(1) declare that, by not recognising as integral parts of the
minimum wage all allowances and supplements — apart
from the construction supplement — paid by employers
in other Member States to their employees in the
construction sector who are posted to Germany, and
consequently by leaving out of account the wage elements
actually paid by such employers to their employees thus
posted, the Federal Republic of Germany has infringed
Article 49 EC and Directive 96/71/EC (1) of the European
Parliament and of the Council of 16 December 1996
concerning the posting of workers in the framework of
the provision of services;

(2) order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The minimum wage fixed by national legislation in a Member
State pursuant to Article 3 of Directive 96/71/EC is to be
assimilated to the earnings received from his employer by an
employee posted abroad. In that connection, regard must be
had to the fact that, in view of the frequent differences in
remuneration structures, a Member State may not impose its
own remuneration structure on employment relationships
with employees posted from other Member States. Conse-
quently, for the purposes of comparison, all of the remuner-
ation paid by his employer to an employee posted abroad in
respect of the full duration of the posting is to be included.
The elements to be left out of account are those expressly
excepted by the directive, namely contributions to supplemen-
tary occupational retirement pension schemes and expenditure
actually incurred during the posting, such as expenditure on
travel, board and lodging. Since the directive does not cover
either social insurance contributions or tax deductions, it is
the gross amounts, not the net ones, which are to be compared.
Although the German Government, in its observations dated
30 May 2001, goes so far as to concede, in part, that the
general practice of leaving all allowances and supplements out
of account is not in accordance with Community law, the
Commission has established that Annex 4 to the ‘Merkblatt

7.12.2002

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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.