Case C-165/05: Action brought on 8 April 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg
Date: 2005-05-28
Institutions: Court of Justice
Subjects: EU national, European Commission, Luxembourg, action for failure to fulfil an obligation, foreign national, free movement of workers, labour law, married person, work permit

C 132/20

EN

Official Journal of the European Union

28.5.2005

Action brought on 8 April 2005 by the Commission of the
European Communities against the Portuguese Republic

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

(Case C-163/05)

(2005/C 132/37)

(Language of the case: Portuguese)

An action against the Portuguese Republic was brought before
the Court of Justice of the European Communities on 8 April
2005 by the Commission of the European Communities, repre-
sented by Ramón Vidal Puig, acting as Agent, with an address
for service in Luxembourg.

— declare that, by imposing in its legislation an obligation on
nationals of non-member countries married to migrant
workers from the European Union to obtain a work permit
and by failing to bring its legislation into line with Com-
munity law, the Grand Duchy of Luxembourg has failed to
fulfil its obligations under Article 11 of Regulation (EEC)
the Council of 15 October 1968 on
No 1612/68 of
freedom of movement
for workers within the Com-
munity; (1)

— order the Grand Duchy of Luxembourg to pay the costs.

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

Pleas in law and main arguments:

1. declare that, by failing to adopt the laws, regulations and
administrative provisions which are necessary in order to
comply with Directive 2002/7/EC (1) of the European Parlia-
ment and of the Council of 18 February 2002 amending
Council Directive 96/53/EC laying down for certain road
vehicles circulating within the Community the maximum
authorised dimensions in national and international traffic
and the maximum authorised weights
in international
traffic, the Portuguese Republic has failed to fulfil its obliga-
tions under that directive;

2. order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The period for transposing the directive into national
expired on 9 March 2004.

law

(1) OJ 2002 L 67, p. 47.

Action brought on 8 April 2005 by the Commission of the
the Grand Duchy of
European Communities against

Luxembourg

(Case C-165/05)

(2005/C 132/38)

(Language of the case: French)

An action against
the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Commu-
nities on 8 April 2005 by the Commission of the European
Communities, represented by Gérard Rozet, acting as Agent,
with an address for service in Luxembourg.

Article 11 of Regulation No 1612/68 provides that, where a
national of a Member State is pursuing an activity as an
employed or self-employed person in the territory of another
Member State, his spouse and those of the children who are
under the age of 21 years or dependent on him are to have the
to take up any activity in an employed capacity
right
throughout the territory of that State, even if they are not
nationals of any Member State.

The right to work is unconditional and means that a spouse or
other family member who is a national of a non-member
country cannot be required to apply for or obtain a work
permit
in order to be able to take up an activity as an
employed person inasmuch as that would have the effect of
rendering that right subject to a further prior condition at
variance with the express provisions of the aforementioned
Article 11.

Luxembourg nationals are not required to hold a work permit
in order to be able to take up employment in the Grand
Duchy. It is for that reason contrary to Article 3 of Regulation
No 1612/68 to impose such an obligation on nationals of non-
member countries married to migrant workers from the Euro-
pean Union.

The national statutory framework must dispel all doubt and
ambiguity not only as to the content of the applicable national
rules but also in regard to the formal value of those rules.

The incompatibility of
legislation with Treaty
the national
provisions, even those directly applicable, can be definitively
removed only by way of internal provisions that are mandatory
in nature and have the same legal status as those to be
amended.

(1) OJ, English Special Edition 1968 (II), p. 475.