Case C-538/03: Action brought on 22 December 2003 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2004-03-20
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, gender equality, part-time employment

20.3.2004

EN

Official Journal of the European Union

C 71/7

Pleas in law and main arguments

— The dispute concerns not the classification of the Saronic
Gulf as a sensitive area but the lack of a system subjecting
urban waste water from the wider Athens area to
treatment more stringent
than secondary treatment
before its discharge into a sensitive area.

— It is an unquestionable fact that on expiry of the period
prescribed by the Commission in its reasoned opinion,
but also up to the time when the present action was
brought, urban waste water from the Psitallia plant did
not receive treatment more stringent than secondary
treatment.

(1) OJ L 135 of 30.5.1991, p. 40.

Reference for a preliminary ruling made by order of the
Tribunale di Cagliari of 20 October 2003 in the case
between Marco Antonio Scalas and Renato Lilliu and the
Regione Autonoma della Sardegna

(Case C-529/03)

(2004/C 71/10)

A reference for a preliminary ruling was made to the Court of
Justice of the European Communities by order of the Tribunale
di Cagliari on 20 October 2003 in proceedings between Marco
Antonio Scalas and Renato Lilliu and the Regione Autonoma
della Sardegna which was lodged at the Court Registry on
19 December 2003. The Tribunale di Cagliari seeks a ruling
on the validity of Commission Decision No 97/612 (1), having
regard to the following defects:

a)

b)

c)

d)

e)

lack of competence on the part of the Commission to
adopt the contested decision in infringement of the
combined provisions of Articles 32, 33, 34, 35, 36, 37
and 38 EC;

infringement of the provisions governing the procedure
provided for under Article 88(1) EC;

infringement of the provisions governing the procedure
provided for under Article 88(2) and (3) EC;

failure to state reasons for the decision in application of
the combined provisions of Articles 253, 88(3) and 87(1)
EC;

infringement and erroneous application of Council Regu-
lation No 797/85 (2) on improving the efficiency of
agricultural structures;

f)

infringement and failure to comply with the ‘practice for
aid to farms in difficulty’ and with the ‘Community
guidelines on State aid for rescuing and restructuring
firms in difficulty’;

g)

breach of the principle of legitimate expectations.

(1) OJ L 248 of 11.9.1997, p. 27.
(2) OJ L 93 of 30.3.1985, p. 1.

Action brought on 22 December 2003 by the Commission
of the European Communities against the Federal Repub-
lic of Germany

(Case C-538/03)

(2004/C 71/11)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
the
ties on 22 December 2003 by the Commission of
European Communities, represented by Nicola Yerrell, of the
Commission’s Legal Service, and Horstpeter Kreppel, a labour
court judge appointed to the Commission’s Legal Service under
the exchange programme for national public servants, acting
as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

1. Declare that

the Federal Republic of Germany has
infringed the principle of equal treatment for men and
women laid down under Articles 1, 2 and 5 of Council
Directive 76/207/EEC (1), and Clause 4 of the Framework
Agreement on part-time work concluded between UNICE,
CEEP and the ETUC set out in the Annex to Council
Directive 97/81/EC (2), in that it indirectly discriminates
against women, who form the great majority of part-time
employees working less than 18 hours a week in the
German public sector,

by excluding,

(a)

under Paragraph 14(2) of the Bundespersonalvertre-
tungsgesetz (Federal Law on staff committees in
the public sector) and the equivalent regulations
applying in the Länder of

— Bavaria

— Berlin

— Bremen

— Hesse,

part-time employees who normally work less than
18 hours a week, and

C 71/8

EN

Official Journal of the European Union

20.3.2004

(b)

in the Länder of

— Mecklenburg-Western Pomerania

treated in a less favourable manner than full-time workers
unless such different
is justified on objective
grounds.

treatment

— Saxony

— Schleswig-Holstein

— Thuringia,

part-time employees who work less than half of the
normal weekly hours of work,

(c)

in the Länder of

— Baden-Württemberg

— Brandenburg

— Rhineland-Palatinate

— Saxony-Anhalt,

However, there are no objective grounds for the exclusion
from eligibility for election. The restricted presence of the
relevant employees in the workplace could be compensated
for by the creation of flexible working time arrangements and
modern means of communication. The Betriebsverfassungsge-
setz (Law on labour relations at the workplace), which governs
elections to works councils in the private sector, does not
restrict eligibility for election in the same way. Such works
councils perform the same functions as staff committees in
the public sector. Representation of the excluded groups is
necessary because they have separate interests, which other-
wise would not be taken into account.

(1) OJ 1976 L 39, p. 40.
(2) OJ 1998 L 14, p. 9.

part-time employees who work less than one-third
of the normal weekly hours of work,

(d)

in North Rhine-Westphalia,

part-time employees who less than 2/5 of
normal weekly hours of work,

the

Appeal brought on 29 December 2003 by General Motors
Nederland BV and Opel Nederland BV against the judg-
ment delivered on 21 October 2003 by the Second
Chamber of the Court of First Instance of the European
in case T-368/00 (1) between General
Communities
Motors Nederland BV and Opel Nederland BV and the
Commission of the European Communities

(e)

in Lower Saxony,

part-time employees who, for a period of up to two
months in the course of a year, are employed for
less than 15 hours a week,

from eligibility for election to staff committees.

2. Order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

(Case C-551/03 P)

(2004/C 71/12)

An appeal against the judgment delivered on 21 October 2003
by the Second Chamber of the Court of First Instance of the
European Communities in case T-368/00 between General
Motors Nederland BV and Opel Nederland BV and the
Commission of the European Communities, was brought
before the Court of Justice of the European Communities on
29 December 2003 by General Motors Nederland BV and Opel
Nederland BV, both established in Sliedrecht (Netherlands),
represented by D. Vandermeersch, R. Snelders and T. Graf,
lawyers, with an address for service in Luxembourg.

The exclusion from eligibility for election to staff committees,
for public sector workers employed by the Federal Republic
and almost all Länder, of part-time employees who normally
work less than 18 hours a week (the number of hours is
somewhat less in certain Länder) constitutes indirect discrimi-
nation against women, as they form the great majority of part-
time workers. This is accordingly in breach of Directive 76/
207/EEC. The rules are also incompatible with Directive 97/
81/EC, which provides that part-time workers may not be

The Appellants claim that the Court should:

1.

annul the judgment of the Second Chamber of the Court
of First Instance of 21 October 2003 in case T-368/00,
General Motors and Opel Nederland vs. Commission of
the European Communities, in so far as it relates to Opel
Nederland’s alleged export strategy and bonus policy and
confirms a fine in that regard;