Case C-353/02: 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, animal product, cereals, food inspection, fruit, national implementing measure, pesticide residue, 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.