CELEX: C2002/305/17
Language: en
Date: 2002-12-07 00:00:00
Title: Case C-353/02: Action brought on 2 October 2002 by the Commission of the European Communities against the Republic of Austria

7.12.2002                EN                   Official Journal of the European Communities                                         C 305/11
zum Arbeitnehmer-Entsendegesetz’ (notes on the Law concern-              The applicant claims that the Court should:
ing the posting of employees abroad), in the still unchanged
version thereof, is provided to employers and forms the basis
of administrative controls by the competent authorities.                 1.    Declare that, by failing to adopt the laws, regulations
                                                                               and administrative provisions necessary to implement
                                                                               Commission Directive 2000/42/EC of 22 June 2000 (1)
Responding in detail to arguments put forward by the German                    amending the Annexes to Council Directives 86/362/
Government, the Commission maintains in particular that:                       EEC, 86/363/EEC and 90/642/EEC on the fixing of
                                                                               maximum levels for pesticide residues in and on fruit and
—     the power conferred on Member States, in accordance                      vegetables and certain products of plant origin, including
      with the second paragraph of Article 3(1) of Directive                   fruit and vegetables respectively, or in failing to notify the
      96/71/EC, to define the concept of ‘minimum pay’                         Commission of their adoption, or in failing to notify the
      does not also include competence to determine the                        Commission of their adoption, the Republic of Austria
      methodology to be followed in carrying out the compara-                  has failed to fulfil its obligations under that directive;
      tive examination;
                                                                         2.    Order the Republic of Austria to pay the costs.
—     although determination of the criterion of ‘accrual’ may
      be relevant for the purposes of defining the concept of
      ‘minimum pay’, the problem of wage elements the accrual
      of which is deferred (e.g. the 13th month’s salary,
      Christmas bonuses) cannot — as provided for in the
      ‘Merkblatt’ — be resolved by simply leaving such matters           Pleas in law and principle arguments
      out of account;
—     control problems arising in connection with such wage              The obligation of the Member States to implement the
      elements are to be resolved bilaterally between the                directives (Article 249(3) EC) includes an obligation to comply
      Member States concerned, and may not lead to a                     with the time-limits laid down in the directives. In the present
      restriction of freedom to provide services;                        case that time-limit expired on 28.02.2001, by which time the
                                                                         Republic of Austria had not adopted the necessary measures.
—     a Member State which has not included supplementary
      holiday pay as part of the minimum pay defined by
      it may not compensate for that ‘lacuna’ by treating
      contributions actually paid to an institution in the               (1 ) OJ 2000 L 158, p. 51.
      Member State where the employer is established which is
      comparable to a German holiday fund as an allowance
      which must be left out of account.
( 1) OJ 1997 L 18, p. 1.
                                                                         Action brought on 2 October 2002 by the Commission
                                                                         of the European Communities against the Republic of
                                                                                                         Austria
Action brought on 2 October 2002 by the Commission
of the European Communities against the Republic of
                              Austria                                                              (Case C-354/02)
                          (Case C-353/02)
                                                                                                   (2002/C 305/18)
                          (2002/C 305/17)
An action against the Republic of Austria was brought                    An action against the Republic of Austria was brought
before the Court of Justice of the European Communities                  before the Court of Justice of the European Communities
on 2 October 2002 by the Commission of the European                      on 2 October 2002 by the Commission of the European
Communities, represented by Gerald Braun, of its legal service,          Communities, presented by Gerald Braun, of its legal service,
acting as Agent, with an address for service in Luxembourg at            acting as agent, with an address for service in Luxembourg at
the office of Luis Escobar Guerrero, of the legal service, Wagner        the office of Luis Escobar Guerrero, of the legal service, Wagner
Centre C 254, Luxembourg-Kirchberg.                                      Centre C 254, Luxembourg-Kirchberg.