Case C-425/02: Reference for a preliminary ruling by the Cour Administrative (Grand-Duché de Luxembourg) by judgment of that Court of 21 November 2002 in the appeal brought by Johanna Maria Boor, née Delahaye, against the Minister for Public Service and Administrative Reform
Date: 2003-01-25
Institutions: Court of Justice
Subjects: Luxembourg, approximation of laws, interpretation of the law, labour law, transfer of businesses, worker consultation, worker information

25.1.2003

EN

Official Journal of the European Communities

C 19/19

Pleas in law and main arguments

Pleas in law and main arguments

The Commission considers that it is the duty of the authorities
of the United Kingdom to initiate, in due time, the procedures
necessary for incorporating Directive 1999/31/EC into dom-
estic law so that such process is complete within the time limit
laid down, irrespective of the nature of such procedures, and
to inform the Commission thereof.

Since the United Kingdom has not informed the Commission
of the provisions adopted to comply fully with the Directive,
and since the Commission is in possession of no other
information enabling it to conclude that the United Kingdom
has adopted the necessary provisions, it is compelled to assume
that the United Kingdom has not yet adopted such provisions
and has thus failed to fulfil its obligations under the Directive.

( 1) OJ L 182, 16.07.1999, p. 1.

Article 249 EC, under which a directive shall be binding as to
the result to be achieved, upon each Member State, carries by
implication an obligation on the Member States to observe the
period for compliance laid down in the directive. That period
expired on 1 January 1990 without the United Kingdom of
Great Britain and Northern Ireland having enacted the pro-
visions necessary to comply with the directive referred to in
the conclusions of the Commission.

(1) OJ L 194, 25.07.1975, p. 23.
(2) OJ L 42, 12.02.1987, p. 43.

Action brought on 22 November 2002 by the Com-
mission of the European Communities against the United
Kingdom of Great Britain and Northern Ireland

(Case C-424/02)

(2003/C 19/33)

Reference for a preliminary ruling by the Cour Adminis-
trative (Grand-Duché de Luxembourg) by judgment of
that Court of 21 November 2002 in the appeal brought
by Johanna Maria Boor, née Delahaye, against the Minister
for Public Service and Administrative Reform

(Case C-425/02)

(2003/C 19/34)

An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of
the European Communities on 22 November 2002 by the
Commission of the European Communities, represented by
X. Lewis and M. Konstantinidis, acting as agents, with an
address for service in Luxembourg.

The Applicant claims that the Court should:

1)

declare that by failing to adopt the laws, regulations
or administrative provisions necessary to comply with
Article 3(1) of Council Directive 75/439/EEC requiring
Member States to take the measures necessary to give
priority to the processing of waste oils by regeneration (1),
as amended by Directive 87/101/EEC on waste oils (2) or,
in any event, by failing to notify such provisions to the
Commission, the United Kingdom of Great Britain and
Northern Ireland has failed to fully fulfil its obligations
under that Directive;

2)

order the United Kingdom of Great Britain and Northern
Ireland to pay the costs.

Reference has been made to the Court of
Justice of the
European Communities by order of the Cour Administrative
(Grand-Duché de Luxembourg) (Administrative Court, Grand
Duchy of Luxembourg) of 21 November 2002, received at the
Court Registry on 25 November 2002, for a preliminary ruling
in the appeal brought by Johanna Maria Boor, née Delahaye,
against the Minister for Public Service and Administrative
Reform on the following question:

Having regard to the provisions of Directives 77/187/EEC (1),
98/50/EC (2) and 2001/23/EC (3) identified herein, in the event
of the transfer of an undertaking from a non-profit-making
association, which is a legal person under private law, to the
State as transferee, is it permissible for the transferor’s rights
and obligations to be taken over only in so far as they are
in
compatible with the State’s own rules of public law,
particular in the area of remuneration, where the detailed
provisions and amounts of compensation are laid down by
grand ducal regulation, bearing in mind that the status of
public-sector employee confers legal benefits in the areas of,
inter alia, career development and job stability on the staff
concerned, and that, in the event of disagreement as regards
‘substantial changes’ to the employment relationship within

C 19/20

EN

Official Journal of the European Communities

25.1.2003

the meaning of Article 4(2) of those Directives, the staff
concerned retain the right to request termination of that
relationship according to the detailed rules in the relevant
provisions?

cations, annul the decision of the Court of Auditors in
that respect and adopt any appropriate consequent
measure;

( 1) Council Directive 77/187/EEC of 14 February 1977 on the
approximation of the laws of the Member States relating to the
safeguarding of employees’ rights in the event of transfers of
undertakings, businesses or parts of businesses (OJ L 61 of
05.03.1977, p. 26).

( 2) Council Directive 98/50/EC of 29 June 1998 amending Directive
77/187/EEC on the approximation of the laws of the Member
States relating to the safeguarding of employees’ rights in the
event of transfers of undertakings, businesses or parts of businesses
(OJ L 201 of 17.07.1998, p. 88).

the laws of

( 3) Council Directive 2001/23/EC of 12 March 2001 on the approxi-
mation of
the Member States relating to the
safeguarding of employees’ rights in the event of transfers of
undertakings, businesses or parts of undertakings or businesses
(OJ L 82 of 22.03.2001, p. 16).

— acquire the documents submitted by the end of the period
prescribed by the notice confirming the claims made
relating to whether Mr. Hervé meets all the requirements;

— in any event, find that the requirements do not comply
with the requirements objectively discernable from the
competition notice, annul Mr Hervé’s appointment and
adopt any appropriate consequent measure;

— in the event that the applicant’s is the only candidature
suited to the post and meeting the requirements to have
been put forward for appointment as Secretary General
of the Court of Auditors, declare that Mr Di Pietro is
entitled to be appointed Secretary General, in view of the
fact that the notice did not reserve a discretion to the
Court regarding the appointment of those candidates
deemed suitable;

— order the reimbursement of the costs and fees disbursed
by the applicant and compensation for the damage
suffered as a result of not being appointed to the post.

Appeal brought on 25 November 2002 by Giuseppe Di
Pietro against the order delivered on 27 September 2002
by the Third Chamber of the Court of First Instance of
the European Communities in Case T-254/01 between
Giuseppe Di Pietro and Court of Auditors of the European
Communities

Pleas and main arguments

(Case C-427/02 P)

(2003/C 19/35)

An appeal against the order delivered on 27 September 2002
by the Third Chamber of the Court of First Instance of the
European Communities in Case T-254/01 between Giuseppe
Di Pietro and Court of Auditors of the European Communities
was brought before the Court of Justice of the European
Communities on 25 November 2002 by Giuseppe Di Pietro,
represented by Giuseppe Monforte, whose chambers are in
Messina.

The appellant claims that the Court should:

The applicant challenges the fact that the Court of First
Instance declared his application manifestly inadmissible and
upheld the objection of
the Court of Auditors that his
statement of 2 August 2001 cannot be deemed to be a
complaint.

According to the Court of First Instance,
in his letter of
2 August 200 the applicant does not challenge the legality of
the decision which adversely affects him nor does it seek any
means of settling the dispute out of court. Instead, it merely
sets out a number of questions and requires the production of
a number of documents. Therefore the aforementioned letter
cannot be deemed a complaint within the meaning of
Article 90(2) of the Staff Regulations.

— acquire the documents relating to the candidates admitted

to the examination;

The applicant argues that the Court of First Instance is wrong
in that his statement of 2 August 2001 contains a request that
action be taken.

— find that the documents do not comply with the require-
ments objectively discernable from the competition
notice, declare inadmissible the non-complying appli-