Case C-27/04: Action brought on 28 January 2004 by the Commission of the European Communities against the Council of the European Union
Date: 2004-02-07
Institutions: Court of Justice
Subjects: Council of the European Union, European Commission, France, Germany, action for failure to act, budget deficit

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.

C 35/6

EN

Official Journal of the European Union

7.2.2004

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

1.

declare that:

— the decisions not to adopt the formal instruments
contained in the Commission’s recommendations
pursuant to Article 104(8) and (9) EC;

— the ‘Council conclusions on assessing the actions
taken by France in response to recommendations of
the Council according to Article 104(7) of
the
Treaty establishing the European Community and
considering further measures for deficit reduction in
order to remedy the situation of excessive deficit’;

and

— the ‘Council conclusions on assessing the actions
taken by Germany in response to recommendations
of the Council according to Article 104(7) of the
Treaty establishing the European Community and
considering further measures for deficit reduction in
order to remedy the situation of excessive deficit’

adopted by the Council on 25 November 2003 are
unlawful and should be annulled;

2.

order the Council to pay the costs.

under Article 104(9) EC may not be adopted unless
a finding has first been made in a decision under
Article 104(8) EC. In proceeding to such a vote, the
Council did not comply with the conditions for the
that were
application of Article 104(9) EC. Even if
possible, the Council would have been required to provide
an adequate statement of reasons explaining its decision
not to adopt the recommendation when it in fact agreed
with the Commission’s economic analysis. The Council
accordingly did not comply with the obligation to state
reasons laid down in Article 253 EC.

— holding the excessive deficit procedure in abeyance.

obligation to

It follows from the Council’s conclusions that it agrees
with the analysis of the Commission, an analysis which
necessarily results in the conclusion that the conditions
for holding the procedures in abeyance were not met.
The Council’s decision to hold the procedures in abeyance
therefore does not comply with the substantive con-
ditions in Article 9 of Regulation (EC) No 1467/97 (1) or
the
down in
Article 253 EC. Nor was the decision to hold the
procedures in abeyance taken in compliance with the
voting rules laid down in Article 104(13) EC since it was
taken by the Member States which have adopted the
Euro, and not on the vote of the 14 Member States other
than the State concerned. If the voting rules had been
observed, it is possible that the conclusions would not
have been adopted for want of a qualified majority.

reasons

state

laid

Pleas in law and main arguments

— recourse to an instrument not envisaged by the Treaty.

in particular the
The system established by the Treaty,
procedure under Article 104 EC, provides that, if the Com-
mission considers that there is an excessive deficit in a Member
State, the Council is obliged to decide whether that is the case
and, if so, to specify binding measures to remedy it as soon as
possible. However, although the Council agrees with the
economic analysis upon which the Commission founded its
recommendations, it departed from the precise and binding
framework provided for by Article 104 EC and instead adopted
an instrument which is not envisaged by the Treaty and is
contrary to the system established by it.

The action decided upon by the Council on 25 November
2003 involves measures which produce legal effects and are
contrary to the Treaty:

— the decisions not to adopt the formal instruments con-
tained in the Commission’s recommendations pursuant
to Article 104(8) and (9) EC.

The Council did not observe the precise and binding
procedure which it must follow when called upon to
apply Article 104(8) and (9) EC. It did not make the
finding required of it when it makes recommendations to
a Member State which has an excessive deficit and those
recommendations do not prompt effective action.
It
nevertheless voted on recommendations of the Com-
mission under Article 104(9) EC. However, a decision

When the Commission submitted recommendations for
decisions under Article 104(8) and (9) EC to the Council,
the latter adopted ‘conclusions’, a measure not envisaged
by the Treaty, in particular Article 104. The institutions
are required to keep to the instruments and procedures
prescribed by the Treaty. It was therefore not open to the
Council to adopt measures other than those provided for
in Article 104 EC, namely decisions which are binding
measures,
‘conclusions’ contain
elements characteristic of decisions such as the holding
of the procedures in abeyance and recommendations to
the Member States. The Council cannot purely and simply
exempt itself from the obligation to adopt decisions in
conformity with the rules of the Treaty and of secondary
legislation, particularly when it agrees with the reasoning
on which the recommendations for decisions submitted
to it by the Commission are founded.

in particular as

its

— modification of recommendations decided upon by the

Council under Article 104(7) EC.

It was not open to the Council to adopt recommendations
contrary to those provided for by its own decisions,
adopted under Article 104(7) EC, without following the
Treaty procedures.

(1) Council Regulation (EC) No 1467/97 of 7 July 1997 on speeding
up and clarifying the implementation of the excessive deficit
procedure (OJ L 209, 2.8.1997, p. 6).