CELEX: C2002/305/14
Language: en
Date: 2002-12-07 00:00:00
Title: Case C-318/02: Action brought on 12 September 2002 by the Kingdom of the Netherlands against the Commission of the European Communities

7.12.2002               EN                    Official Journal of the European Communities                                        C 305/9
Is Article 12 EC, in conjunction with Article 3 of Regulation            20 291 540 euros from the amount of aid declared by the
EEC No 1408/71 of the Council of 14 June 1971 ( 1) on the                Netherlands to the EAGGF in connection with the special
application of social security schemes to employed persons               market support measures relating to classical swine fever in
and their families moving within the Community, to be                    the Netherlands in 1997 and 1998, comprising in particular:
interpreted as precluding a national rule that discriminates
against a Community citizen in receipt of advances on
maintenance payments, where the father liable for maintaining
that citizen is serving a criminal sentence in his Member State          —    a deduction of 11 148 318,18 euros on account of the
of origin (i.e. not in Austria); and, where the child of a German             fact that the Netherlands, by failing correctly to apply the
national is resident in Austria, does denying that child                      denaturing provisions, allegedly impaired the application
entitlement to maintenance payments because his father is                     of the monitoring rules and thereby increased the risk of
serving a criminal sentence, which was handed down in                         evasion of the applicable legislation (flat-rate correction
Austria, in his Member State of origin (and not in Austria)                   of 5 %): even if it is accepted that, when carrying out the
constitute discrimination against that child?                                 denaturing of (parts of) pigs pursuant to Annex III to
                                                                              Regulation (EC) No 413/97 (1), the authorities failed to
                                                                              do so in the correct order, it cannot be maintained that,
( 1) OJ L 149 [1971], p. 2.                                                   in such denaturing, the objectives of Annex III (namely to
                                                                              ensure that (parts of) pigs are slaughtered and destroyed
                                                                              instead of coming back onto the market) were dis-
                                                                              regarded;
                                                                         —    a deduction of 6 427 370,45 euros on account of the
                                                                              fact that the Netherlands authorities allegedly miscon-
Action brought on 12 September 2002 by the Kingdom of                         strued and misapplied the term ‘batch’ within the meaning
the Netherlands against the Commission of the European                        of Regulation (EC) No 413/97: having regard to the
                            Communities                                       wording of that regulation, to the way in which the term
                                                                              ‘batch’ in comparable legislation has been interpreted in
                          (Case C-318/02)                                     the past and to the fact that the interpretation of that
                                                                              term advocated by the Commission (which draws a
                                                                              distinction between different categories of piglets) has
                          (2002/C 305/14)                                     proved unworkable in practice, the Netherlands auth-
                                                                              orities did not misconstrue or misapply the term ‘batch’.
                                                                              In the alternative, the Netherlands Government pleads
                                                                              that the calculation carried out by the Commission to
An action against the Commission of the European Communi-                     determine the amount of the reduction is incorrect in
ties was brought before the Court of Justice of the European                  law;
Communities on 12 September 2002 by the Kingdom of the
Netherlands, represented by H.G. Sevenster and N. Bel, acting
as Agents, with an address for service in The Hague.
                                                                         —    as regards the deduction of 2 750 070,91 euros on
                                                                              account of the fact that the Netherlands authorities
The Kingdom of the Netherlands claims that the Court should:                  allegedly failed generally to comply with the checking
                                                                              system and committed other administrative faults (flat-
(1) annul the Commission’s decision No C(2002) 2281 def.                      rate correction of 2 %): the discrepancies established by
      of 26 June 2002 excluding from Community financing                      the Commission between the number of pigs needing,
      certain expenditure incurred by the Member States under                 according to individual veterinary surgeons, to be
      the Guarantee Section of the European Agricultural                      removed for reasons of wellbeing and the number actually
      Guidance and Guarantee Fund (EAGGF), in so far as                       removed within the period of two days do not in any way
      that decision concerns the exclusion from Community                     indicate that the numbers of pigs to be removed, as
      financing of expenditure incurred by the Netherlands                    declared by the individual veterinary surgeons, were
      under the European Agricultural Guidance and Guarantee                  incorrect. As a result of the long duration of the
      Fund in the financial years 1997 and 1998;                              crisis, virtually all the pigs from the affected areas were
                                                                              ultimately removed and destroyed. Consequently, even if,
                                                                              and in so far as, it is to be accepted that, in some cases,
(2) order the Commission to pay the costs.                                    the declarations of the individual veterinary surgeons
                                                                              were not well-founded, those declarations did not in
                                                                              any way entail any financial prejudice or risk for the
                                                                              Community budget. As regards the export of carcasses to
Pleas in law and main arguments                                               Germany, the Netherlands Government argues that the
                                                                              checking and monitoring of shipments transported from
The Netherlands Government considers that the decision is                     the Netherlands to the German destruction plants guaran-
unlawful, or at least that it is based on an incorrect determi-               teed that the (parts of) pigs were not unlawfully with-
nation of the facts, inasmuch as it deducts the sum of                        drawn in order to be placed back on the market. The
 ---pagebreak--- C 305/10               EN                    Official Journal of the European Communities                                     7.12.2002
      Netherlands Government further points out that, to date,          Action brought on 25 September 2002 by the Com-
      the Commission has been unwilling to grant access to the          mission of the European Communities against the Federal
      German documents which it clearly had in its possession                                Republic of Germany
      and on which, inter alia, it based its assessment of the
      alleged shortcomings within the German destruction
      plants.                                                                                   (Case C-341/02)
                                                                                                (2002/C 305/16)
( 1) OJ 1997 L 62.
                                                                        An action against the Federal Republic of Germany was
                                                                        brought before the Court of Justice of the European Communi-
                                                                        ties on 25 September 2002 by the Commission of the
                                                                        European Communities, represented by J. Sack and H. Kreppel,
Action brought on 23 September 2002 by the Com-                         with an address for service in Luxembourg.
mission of the European Communities against the Portu-
                           guese Republic
                                                                        The Commission of the European Communities claims that
                          (Case C-339/02)                               the Court should:
                          (2002/C 305/15)                               (1) declare that, by not recognising as integral parts of the
                                                                              minimum wage all allowances and supplements — apart
                                                                              from the construction supplement — paid by employers
                                                                              in other Member States to their employees in the
An action against the Portuguese Republic was brought                         construction sector who are posted to Germany, and
before the Court of Justice of the European Communities on                    consequently by leaving out of account the wage elements
23 September 2002 by the Commission of the European                           actually paid by such employers to their employees thus
Communities, represented by António Caeiros, acting as                        posted, the Federal Republic of Germany has infringed
Agent, with an address for service in Luxembourg.                             Article 49 EC and Directive 96/71/EC ( 1) of the European
                                                                              Parliament and of the Council of 16 December 1996
                                                                              concerning the posting of workers in the framework of
The applicant claims that the Court should:                                   the provision of services;
—     Declare that, by failing to adopt and bring into force            (2) order the Federal Republic of Germany to pay the costs.
      within the prescribed period the laws, regulations and
      administrative provisions necessary to comply with
      Directive 1999/103/EC of the European Parliament and
      of the Council of 24 January 2000 amending Council
                                                                        Pleas in law and main arguments
      Directive 80/181/EEC on the approximation of the laws
      of the Member States relating to units of measurement ( 1),
      the Portuguese Republic has failed to fulfil its obligations      The minimum wage fixed by national legislation in a Member
      under Article 2(1) of the abovementioned Directive 1999/          State pursuant to Article 3 of Directive 96/71/EC is to be
      103/EC; and                                                       assimilated to the earnings received from his employer by an
                                                                        employee posted abroad. In that connection, regard must be
—     In the alternative, declare that, by failing to inform            had to the fact that, in view of the frequent differences in
      the Commission immediately of such measures, the                  remuneration structures, a Member State may not impose its
      Portuguese Republic has failed to fulfil its obligations          own remuneration structure on employment relationships
      under Article 2(1) of the abovementioned Directive 1999/          with employees posted from other Member States. Conse-
      103/EC; and                                                       quently, for the purposes of comparison, all of the remuner-
                                                                        ation paid by his employer to an employee posted abroad in
—     Order the Portuguese Republic to pay the costs.                   respect of the full duration of the posting is to be included.
                                                                        The elements to be left out of account are those expressly
                                                                        excepted by the directive, namely contributions to supplemen-
Pleas in law and main arguments                                         tary occupational retirement pension schemes and expenditure
                                                                        actually incurred during the posting, such as expenditure on
                                                                        travel, board and lodging. Since the directive does not cover
The time-limit for implementation expired on 9 February                 either social insurance contributions or tax deductions, it is
2001.                                                                   the gross amounts, not the net ones, which are to be compared.
                                                                        Although the German Government, in its observations dated
                                                                        30 May 2001, goes so far as to concede, in part, that the
( 1) OJ 2000 L 34, p. 17.                                               general practice of leaving all allowances and supplements out
                                                                        of account is not in accordance with Community law, the
                                                                        Commission has established that Annex 4 to the ‘Merkblatt