Case C-445/03: Action brought on 21 October 2003 by the Commission of the European Communities against the Grand Duchy of Luxembourg
Date: 2003-11-29
Institutions: Court of Justice
Subjects: European Commission, Luxembourg, action for failure to fulfil an obligation, freedom to provide services, work contract, work permit

29.11.2003

EN

Official Journal of the European Union

C 289/17

Action brought on 21 October 2003 by the Commission
of the European Communities against the Grand Duchy
of Luxembourg

(Case C-445/03)

(2003/C 289/33)

An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-
ties on 21 October 2003 by the Commission of the European
Communities, represented by M. Patakia, acting as Agent, with
an address for service in Luxembourg.

Furthermore, the requirements seem to exceed what is necess-
ary to achieve the objective pursued. The requirement of prior
authorisation constitutes an obstacle, given that a supplier of
services must often work under time pressure in respect of
customers established in Luxembourg and prior authorisation
and any delay in issuing it may make the supply of services
impossible. The requirements of a contract for an indefinite
period and previous employment of at least six months prior
to the posting also seem disproportionate since the presence
of the workers in question has no impact on the Luxembourg
job market. As for
the bank guarantee, such a charge
discriminates against foreign suppliers of services already
subject to fees in order to obtain a work permit in their
Member State of establishment.

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

Action brought on 24 October 2003 by the Commission
of the European Communities against the French Republic

1. Declare that:

— by requiring an individual or collective work permit
from a supplier of services established in another
Member State where that supplier wishes to post its
personnel made up of nationals of non-Member
countries lawfully residing and working in that other
Member State and making the issue of that permit
subject to considerations connected with the job
market and to the existence of a contract of indefinite
duration and of previous employment with the same
supplier of services for at least 6 months;

— by requiring that the same supplier of services
provide a bank guarantee in the minimum sum of
LUF 60 000 (EUR 1 487,36),

the Grand Duchy of Luxembourg has failed to fulfil its
obligations under Article 49 EC;

2. Order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The conditions for the posting to Luxembourg of workers who
are nationals of non-Member countries as part of a cross-
border supply of services are incompatible with Community
law, in particular with the freedom to provide services under
Article 49 EC. The imposition of such conditions on the
supplier of services from another Member State discriminates
against that supplier by comparison with its competitors
established in the host Member State which may freely use
their own staff and also affects its capacity to supply the
services.

(Case C-448/03)

(2003/C 289/34)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 24 October
2003 by the Commission of the European Communities,
represented by K. Banks, acting as Agent, with an address for
service in Luxembourg.

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

1. Declare that, by not adopting the laws, regulations
and administrative provisions necessary to comply with
Directive 98/44/EC of the European Parliament and of
the Council of 6 July 1998 on the legal protection of
biotechnological inventions (1) or, in any event, by not
communicating those provisions to the Commission, the
French Republic has failed to fulfil its obligations under
Article 15 of that directive;

2. Order the French Republic to pay the costs.

Pleas in law and main arguments

The time-limit fixed for the transposition of the directive
expired on 30 July 2000.

(1) OJ L 213 of 30.07.1998, p. 13.