Case C-204/04: Action brought on 7 May 2004 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2004-08-07
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, civil service, gender equality, part-time employment, workers' representation

7.8.2004

EN

Official Journal of the European Union

C 201/7

1. Declares that, by failing to adopt

regulations and
administrative provisions necessary to implement Council Directive
1999/22/EC of 29 March 1999 relating to the keeping of wild
animals in zoos, the Italian Republic has failed to fulfil its obliga-
tions under that directive;

the laws,

2. Orders the Italian Republic to pay the costs.

(1) OJ C 213, 6.9.2003.

Reference for a preliminary ruling by the Simvoulio tis
Epikratias by judgment of that court of 3 March 2004 in
the case of Elmeka N.E. against the Minister for Economic
Affairs

(Case C-182/04)

(2004/C 201/12)

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Simvoulio tis Epikratias
(Council of State, Greece) of 3 March 2004, received at the
Court Registry on 19 April 2004, for a preliminary ruling in
the case of Elmeka N.E. against the Minister for Economic
Affairs on the following questions:

The questions in the present case match the questions in Case
C-181/04.

Action brought on 7 May 2004 by the Commission of the
European Communities against the Federal Republic of
Germany

(Case C-204/04)

(2004/C 201/14)

An action against
the Federal Republic of Germany was
brought before the Court of Justice of the European Commu-
nities on 7 May 2004 by the Commission of the European
Communities, represented by Nicola Yarrell, of the Commis-
sion'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
to Council Directive
ETUC set out
97/81/EC (2),
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,

in the Annex

in that

it

(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,

Reference for a preliminary ruling by the Simvoulio tis
Epikratias by judgment of that court of 3 March 2004 in
the case of Elmeka N.E. against the Minister for Economic
Affairs

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

(b) in the Länder of

— Mecklenburg-Western Pomerania

(Case C-183/04)

(2004/C 201/13)

— Saxony

— Schleswig-Holstein

— Thuringia,

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Simvoulio tis Epikratias
(Council of State, Greece) of 3 March 2004, received at the
Court Registry on 19 April 2004, for a preliminary ruling in
the case of Elmeka N.E. against the Minister for Economic
Affairs on the following questions:

The questions in the present case match the questions in Case
C-181/04.

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,

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

C 201/8

EN

Official Journal of the European Union

7.8.2004

(d) in North Rhine-Westphalia,

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

by Lord Goldsmith QC, Her Majesty's Attorney General;
Nicholas Paines QC and Tim Ward, with an address for service
in Luxembourg.

(e) in Lower Saxony,

The Applicant claims that the Court should:

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:

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 some-
what less in certain Länder) constitutes indirect discrimination
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 treated in a less
favourable manner than full-time workers unless such different
treatment is justified on objective grounds.

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 Betriebsverfassungsgesetz (Law
on labour relations at the workplace), which governs elections
to works councils in the private sector, does not restrict elig-
ibility 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 otherwise would
not be taken into account.

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

Action brought on 24 May 2004 by the United Kingdom
against the European Parliament and the Council of the
European Union

— declare that Regulation (EC) No 460/2004 of the European
Parliament and of the Council of 10 March 2004 estab-
lishing the European Network and Information Agency (1) is
invalid;

— order the European Parliament and the Council of the Euro-

pean Union to pay the United Kingdom's costs.

Pleas in law and main arguments:

The contested Regulation (Regulation (EC) No 460/2004, the
‘ENISA Regulation’) sets up a European Network and Informa-
tion Security Agency (‘the Agency’) whose function is to
provide guidance, advice and assistance to the Commission, the
Member States and the business community on issues relating
to network and information security within the scope of the
ENISA Regulation. The United Kingdom supports the establish-
ment of the Agency, but submits that article 95 EC does not
provide a proper legal basis for doing so. The ENISA Regu-
lation is concerned entirely with the creation of the Agency as
a Community body; it prescribes the Agency's objectives and
tasks and makes provision for its management and organisation
and work programme; in addition it makes provision as to the
Agency's budget,
legal status, privileges and immunities and
working languages. The provisions of the ENISA Regulation
take effect entirely at the level of the institutional law of the
Community.

that

The United Kingdom submits
the legislative power
conferred by article 95 EC is a power to harmonise national
laws;
it is not a power to set up Community bodies or to
confer tasks upon such bodies. Such matters lie outside the
scope of national law, and Community legislation which sets
up such a body, or confers tasks upon it, cannot harmonise
national law within the meaning of article 95.

None of the provisions of the ENISA Regulation approximate,
even indirectly, any provision of national law. On the contrary,
the Agency is expressly precluded from interfering with the
competencies of national bodies and the objectives and tasks of
the Agency are expressed in article 1(3) to be without prejudice
to the competence of Member States.

(Case C-217/04)

(2004/C 201/15)

The provisions of the ENISA Regulation therefore fall outside
the power of harmonisation conferred on the Parliament and
Council by article 95 and the only appropriate legal basis for
such a measure could be article 308 EC.

An action against the European Parliament and the Council of
the European Union was brought before the Court of Justice of
the European Communities on 24 May 2004 by the United
Kingdom, represented by Mark Bethell, acting as agent; assisted

(1) OJ L 077, 13.03.2004, p. 1.