Case C-519/03: Action brought on 12 December 2003 by the Commission of the European Communities against the Grand Duchy of Luxembourg
Date: 2004-02-07
Institutions: Court of Justice
Subjects: Luxembourg, action for failure to fulfil an obligation, maternity leave, parental leave

7.2.2004

EN

Official Journal of the European Union

C 35/5

Pleas in law and main arguments

The Commission considers that the fact that the contract at
issue in this case falls within the scope of Council Directive
92/50/EEC (1) as amended by European Parliament and Council
Directive 97/52/EC (2) does not preclude the application of
the principle enunciated in Telaustria (3) deriving from the
fundamental
freedoms laid down in the Treaty and the
application of general principles which are given specific
expression in those fundamental freedoms. The obligation on
Member States to comply with general principles is confirmed,
within the Directive itself by Article 3(2)
(see above), a
general obligation on contracting authorities to avoid all
discrimination between service providers. That obligation is
incumbent on the Irish authorities in respect of Annex 1B
services just as much as in respect of Annex 1A services.

It is submitted that the Commission’s analysis is the only one
which can be regarded as consistent with the internal market
logic of the Treaty. The Court’s case-law clearly holds that the
Treaty provisions on the freedoms of establishment and service
provision impose obligations on Member States in respect of
the award of public contracts outside the scope of
the
directives. This applies to types of contracts (such as service
concessions) that are not specifically covered and also to
contracts of types which are covered but where the value falls
below the thresholds set in the various directives.

That being so, the Commission submits that it would run
directly counter to the logic of the internal market if, whereas
Community law requires an appropriate level of advertising in
such situations even if the contract falls outside the scope of
it were
the directives because of
nevertheless open to Member States not to advertise in any
way contracts (whose value is above the financial thresholds)
solely on the grounds that the services to which they relate fall
within the scope of Annex 1B of the Directive.

its structure or value,

(1) Directive of 18 June 1992 relating to the coordination of
procedures for the award of public service contracts (OJ L 209,
24.07.1992, p. 1).

(2) Directive of 13 October 1997 amending Directives 92/50/
EEC, 93/36/EEC and 93/37/EEC concerning the coordination of
procedures for the award of public service contracts, public supply
contracts and public works contracts respectively (OJ L 328,
28.11.1997, p. 1).

(3) Case C-324/98, Telaustria Verlags GmbH v Telekom Austria AG,

ECR[2000], p.I-10745.

Communities, represented by D. Martin, 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 adopting Article 7(2) and the fifth
subparagraph of Article 19 of the Law of 12 February
1999 setting up parental
leave and leave for family
reasons, the Grand Duchy of Luxembourg has failed to
fulfil its obligations under Clause 2(1) of Part II of the
Annex to Council Directive 96/34/EC of 3 June 1996 on
the framework agreement on parental leave concluded by
UNICE, CEEP and the ETUC (1), as regards:

— the substitution of maternity leave for parental leave,

and

— the date from which individual rights to parental

leave are granted;

2.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

1. Maternity leave has a completely different purpose from
that of parental leave. Moreover, Clause 2(1) of the framework
agreement expressly provides that parental leave is an individ-
ual right to leave of at least three months’ duration. The
obligatory termination of parental leave when maternity leave
begins is therefore not compatible with that provision of the
Annex to Directive 96/34. The woman whose maternity leave
leave must, in the light of the
begins during her parental
individual right to parental
leave of at least three months
conferred on her by Clause 2(1) of the framework agreement,
be able to defer the portion of her parental leave which she
has not been able to take because of her maternity leave.

2.
By limiting its application to children born or adopted
after 31 December 1998, the Luxembourg authorities have
added a condition which is not authorised by the Directive.

(1) OJ L 145 of 19.06.1996, p. 4.

Action brought on 28 January 2004 by the Commission
of the European Communities against the Council of the
European Union

Action brought on 12 December 2003 by the Commission
of the European Communities against the Grand Duchy
of Luxembourg

(Case C-27/04)

(2004/C 35/09)

(Case C-519/03)

(2004/C 35/08)

An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-
ties on 12 December 2003 by the Commission of the European

An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-
ties on 28 January 2004 by the Commission of the European
Communities, represented by M. Petite, A. van Solinge and
P. Aalto, acting as Agents, with an address for service in
Luxembourg.