Case C-162/04: Action brought on 31 March 2004 by the Republic of Finland against the Commission of the European Communities
Date: 2004-05-29
Institutions: Court of Justice
Subjects: EU financing, European Commission, Finland, action for annulment (EU), aid system, guarantee, utilised agricultural area

29.5.2004

EN

Official Journal of the European Union

C 146/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

Reference for a preliminary ruling by the Arbeitsgericht
München, by judgment of that court of 26 February 2004
in the case of Werner Mangold against Rüdiger Helm

ment contracts may be concluded, without any objective
reason, with workers aged 52 and over, thus running counter
to the principle of justification on objective grounds?
3.

(Case C-144/04)

(2004/C 146/01)

If one of those three questions is answered in the affirmative:
the national court refuse to apply the provision of
Must
national law which conflicts with Community law and, in that
case, does the general principle laid down in national
law
apply, under which fixed terms of employment are permissible
only if they are justified on an objective ground?

Reference has been made to the Court of Justice of the Euro-
pean Communities by the Arbeitsgericht München, of 26
February 2004, which was received at the Court Registry on
17 March 2004, for a preliminary ruling in the case of Werner
Mangold against Rüdiger Helm on the following questions:

(1) OJ L 175, p. 43.
(2) OJ L 303, p. 16.

1(a)

Is Clause 8(3) of the Framework Agreement (Council Directive
1999/70/EC (1) of 28 June 1999 concerning the framework
agreement on fixed-term work concluded by ETUC, UNICE and
CEEP) to be interpreted as prohibiting,
in the course of the
implementation of that agreement in national law, any reduced
protection as a result of a reduction in the age limit from 60 to
58?
1(b)

Action brought on 31 March 2004 by the Republic of
Finland against the Commission of the European Commu-
nities

(Case C-162/04)

(2004/C 146/02)

Is Clause 5(1) of the Framework Agreement (Council Directive
1999/70/EC of 28 June 1999 concerning the framework agree-
ment on fixed-term work concluded by ETUC, UNICE and
CEEP) to be interpreted as precluding a provision of national
law which – like the provision at issue in this case – does not
contain any of the three restrictions set out in paragraph 1 of
that clause?
2.

An action against the Commission of the European Commu-
nities was brought before the Court of Justice of the European
Communities on 31 March 2004 by the Republic of Finland,
represented by A. Guimaraes-Purokoski, acting as Agent, with
an address for service in Luxembourg.

The Republic of Finland claims principally that
should:

the Court

Is Article 6 of Council Directive 2000/78/EC (2) of 27
November 2000 establishing a general framework for equal
treatment in employment and occupation to be interpreted as
precluding a provision of national
law under which – like
under the provision at issue in this case – fixed-term employ-

i) annul Commission Decision 2004/136/EC of 4 February
2004 excluding from Community financing certain expen-
diture incurred by the Member States under the Guarantee
Section of the European Agricultural Guidance and Guar-
antee Fund (EAGGF) (1) in so far as it concerns Finland;

C 146/2

EN

Official Journal of the European Union

29.5.2004

ii) order the Commission to pay the costs.

The Republic of Finland claims in the alternative that the
Court should:

2004 by the Commission of the European Communities, repre-
sented by Barbara Eggers and Enrico Traversa, with an address
for service in Luxembourg.

iii) annul Commission Decision 2004/136/EC of 4 February
2004 excluding from Community financing certain expen-
diture incurred by the Member States under the Guarantee
Section of the European Agricultural Guidance and Guar-
antee
sum of
as
EUR 3 194 596;

(EAGGF)

regards

Fund

the

iv) order the Commission to pay the costs.

Pleas in law and main arguments

The applicant claims that the Court should:

— Declare that the Republic of Austria has failed to fulfil its
obligations under Article 49 EC inasmuch as by means of
Article 18(12) to (16) of the AuslBG and Article 10(1)(3)
FrG it
is disproportionately restricting the posting of
workers who are third-country nationals in connection with
the provision of services.

Finland considers that when adopting the contested decision
the Commission:

— Order the Republic of Austria to pay the costs.

i) misapplied Article 9(2) of Regulation No 3887/92 (1) and
wrongly assessed the factual situation in Pohjois-Karjala.
The Commission failed to demonstrate that
there were
substantial defects in the Finnish system of control of area
aid in Pohjois-Karjala and that the Finnish authorities had
not taken the corrective measures required by the Commis-
sion;

ii) wrongly

the

assessed

situation in Pohjois-
factual
Pohjanmaa, Pohjois-Savo, Keski-Suomi, Kainuu and Lappi.
The Commission failed to demonstrate that
there were
serious defects in the Finnish system of control of area aid
in those regions and that the Finnish authorities had not
taken the corrective measures required by the Commission;

iii) breached the principle of proportionality by extending the
contested decision to apply, in addition to Pohjois-Karjala,
also to Pohjois-Pohjanmaa, Pohjois-Savo, Keski-Suomi,
Kainuu and Lappi; and

iv) failed to demonstrate that the methods of measurement
used in the system of control of area aid in Pohjois-Karjala,
Pohjois-Pohjanmaa, Pohjois-Savo, Keski-Suomi, Kainuu and
Lappi were contrary to Community law.

(1) OJ L 40 of 12.2.2004, p. 31.
(1) Commission Regulation (EEC) No 3887/92 of 23 December 1992
laying down detailed rules for applying the integrated administration
and control system for certain Community aid schemes, OJ L 391
of 31.12.1992, p. 36.

Pleas in law and main arguments

in another Member State are
Providers of services resident
adversely affected by three different supervisory procedures
with three different Austrian authorities in regard to the
posting of workers who are third-country nationals to Austria.
Thus the Ausländerbeschaftigungsgesetz (Law on employment
foreign nationals - AuslBG) requires an ‘EU Posting of
of
Workers Certificate’ to be obtained at the regional branch of
the employment service in addition to the visa under the Frem-
dengesetz (Law on foreign nationals - FrG)
issued by the
competent consulates, and a notification procedure to check
pay and working conditions in accordance with the Arbeitsver-
tragsrechtsanpassungsgesetz
employment
contracts - AVRAG).

(Law adapting

I. EU Posting of Workers Certificate, Article 18 (12) to

(16) AuslBG

The requirement of an EU Posting of Workers Certificate
pursuant to Article 18(12) to (16) of the AuslBG has a restric-
tive effect on freedom to provide services in the Community.

The requirement of an EU Posting of Workers Certificate in
addition to the visa under the FrG and the notification proce-
dure under the AVRAG is disproportionate to the objectives
pursued by the Republic of Austria of combating abusive prac-
tices and protecting workers.

Action brought on 5 April 2004 by the Commission of the
European Communities against the Republic of Austria

(Case C-168/04)

(2004/C 146/03)

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 5 April

1. Pr e v e n ti on of a bu si ve p r a c t i c e s

The Austrian Government is infringing the principle of propor-
tionality, as effective control of the conditions governing the
posting of workers in connection with the provision of services
can be ensured through less far-reaching measures.