Case C-339/02: Action brought on 23 September 2002 by the Commission of the European Communities against the Portuguese Republic
Date: 2002-12-07
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, approximation of laws, harmonisation of standards, metrology, national implementing measure, weights and measures

C 305/10

EN

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