CELEX: C2004/071/11
Language: en
Date: 2004-03-20 00:00:00
Title: Case C-538/03: Action brought on 22 December 2003 by the Commission of the European Communities against the Federal Republic of Germany

20.3.2004              EN                         Official Journal of the European Union                                           C 71/7
Pleas in law and main arguments                                           f)   infringement and failure to comply with the ‘practice for
                                                                               aid to farms in difficulty’ and with the ‘Community
—     The dispute concerns not the classification of the Saronic               guidelines on State aid for rescuing and restructuring
      Gulf as a sensitive area but the lack of a system subjecting             firms in difficulty’;
      urban waste water from the wider Athens area to
      treatment more stringent than secondary treatment                   g)   breach of the principle of legitimate expectations.
      before its discharge into a sensitive area.
                                                                          (1) OJ L 248 of 11.9.1997, p. 27.
—     It is an unquestionable fact that on expiry of the period           (2) OJ L 93 of 30.3.1985, p. 1.
      prescribed by the Commission in its reasoned opinion,
      but also up to the time when the present action was
      brought, urban waste water from the Psitallia plant did
      not receive treatment more stringent than secondary
      treatment.
                                                                          Action brought on 22 December 2003 by the Commission
(1) OJ L 135 of 30.5.1991, p. 40.                                         of the European Communities against the Federal Repub-
                                                                                                   lic of Germany
                                                                                                  (Case C-538/03)
                                                                                                    (2004/C 71/11)
Reference for a preliminary ruling made by order of the
Tribunale di Cagliari of 20 October 2003 in the case                      An action against the Federal Republic of Germany was
between Marco Antonio Scalas and Renato Lilliu and the                    brought before the Court of Justice of the European Communi-
              Regione Autonoma della Sardegna                             ties on 22 December 2003 by the Commission of the
                                                                          European Communities, represented by Nicola Yerrell, of the
                         (Case C-529/03)                                  Commission’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
                          (2004/C 71/10)                                  as Agents, with an address for service in Luxembourg.
                                                                          The applicant claims that the Court should:
A reference for a preliminary ruling was made to the Court of             1.   Declare that the Federal Republic of Germany has
Justice of the European Communities by order of the Tribunale                  infringed the principle of equal treatment for men and
di Cagliari on 20 October 2003 in proceedings between Marco                    women laid down under Articles 1, 2 and 5 of Council
Antonio Scalas and Renato Lilliu and the Regione Autonoma                      Directive 76/207/EEC (1), and Clause 4 of the Framework
della Sardegna which was lodged at the Court Registry on                       Agreement on part-time work concluded between UNICE,
19 December 2003. The Tribunale di Cagliari seeks a ruling                     CEEP and the ETUC set out in the Annex to Council
on the validity of Commission Decision No 97/612 (1), having                   Directive 97/81/EC (2), in that it indirectly discriminates
regard to the following defects:                                               against women, who form the great majority of part-time
                                                                               employees working less than 18 hours a week in the
a)    lack of competence on the part of the Commission to                      German public sector,
      adopt the contested decision in infringement of the
      combined provisions of Articles 32, 33, 34, 35, 36, 37                   by excluding,
      and 38 EC;
                                                                               (a)   under Paragraph 14(2) of the Bundespersonalvertre-
b)    infringement of the provisions governing the procedure                         tungsgesetz (Federal Law on staff committees in
      provided for under Article 88(1) EC;                                           the public sector) and the equivalent regulations
                                                                                     applying in the Länder of
c)    infringement of the provisions governing the procedure
                                                                                     —     Bavaria
      provided for under Article 88(2) and (3) EC;
                                                                                     —     Berlin
d)    failure to state reasons for the decision in application of
      the combined provisions of Articles 253, 88(3) and 87(1)                       —     Bremen
      EC;
                                                                                     —     Hesse,
e)    infringement and erroneous application of Council Regu-
      lation No 797/85 (2) on improving the efficiency of                            part-time employees who normally work less than
      agricultural structures;                                                       18 hours a week, and
 ---pagebreak--- C 71/8                 EN                           Official Journal of the European Union                                      20.3.2004
      (b) in the Länder of                                                  treated in a less favourable manner than full-time workers
                                                                            unless such different treatment is justified on objective
                                                                            grounds.
            —     Mecklenburg-Western Pomerania
            —     Saxony                                                    However, there are no objective grounds for the exclusion
                                                                            from eligibility for election. The restricted presence of the
            —     Schleswig-Holstein                                        relevant employees in the workplace could be compensated
                                                                            for by the creation of flexible working time arrangements and
                                                                            modern means of communication. The Betriebsverfassungsge-
            —     Thuringia,                                                setz (Law on labour relations at the workplace), which governs
                                                                            elections to works councils in the private sector, does not
            part-time employees who work less than half of the              restrict eligibility for election in the same way. Such works
            normal weekly hours of work,                                    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 other-
      (c)   in the Länder of                                                wise would not be taken into account.
            —     Baden-Württemberg
                                                                            (1) OJ 1976 L 39, p. 40.
                                                                            (2) OJ 1998 L 14, p. 9.
            —     Brandenburg
            —     Rhineland-Palatinate
            —     Saxony-Anhalt,
            part-time employees who work less than one-third                Appeal brought on 29 December 2003 by General Motors
            of the normal weekly hours of work,                             Nederland BV and Opel Nederland BV against the judg-
                                                                            ment delivered on 21 October 2003 by the Second
      (d) in North Rhine-Westphalia,                                        Chamber of the Court of First Instance of the European
                                                                            Communities in case T-368/00 (1) between General
            part-time employees who less than 2/5 of the                    Motors Nederland BV and Opel Nederland BV and the
            normal weekly hours of work,                                             Commission of the European Communities
      (e)   in Lower Saxony,                                                                        (Case C-551/03 P)
            part-time employees who, for a period of up to two                                        (2004/C 71/12)
            months in the course of a year, are employed for
            less than 15 hours a week,
            from eligibility for election to staff committees.              An appeal against the judgment delivered on 21 October 2003
                                                                            by the Second Chamber of the Court of First Instance of the
                                                                            European Communities in case T-368/00 between General
2.    Order the Federal Republic of Germany to pay the costs.               Motors Nederland BV and Opel Nederland BV and the
                                                                            Commission of the European Communities, was brought
                                                                            before the Court of Justice of the European Communities on
                                                                            29 December 2003 by General Motors Nederland BV and Opel
                                                                            Nederland BV, both established in Sliedrecht (Netherlands),
Pleas in law and main arguments                                             represented by D. Vandermeersch, R. Snelders and T. Graf,
                                                                            lawyers, with an address for service in Luxembourg.
The exclusion from eligibility for election to staff committees,
for public sector workers employed by the Federal Republic                  The Appellants claim that the Court should:
and almost all Länder, of part-time employees who normally
work less than 18 hours a week (the number of hours is                      1.    annul the judgment of the Second Chamber of the Court
somewhat less in certain Länder) constitutes indirect discrimi-                   of First Instance of 21 October 2003 in case T-368/00,
nation against women, as they form the great majority of part-                    General Motors and Opel Nederland vs. Commission of
time workers. This is accordingly in breach of Directive 76/                      the European Communities, in so far as it relates to Opel
207/EEC. The rules are also incompatible with Directive 97/                       Nederland’s alleged export strategy and bonus policy and
81/EC, which provides that part-time workers may not be                           confirms a fine in that regard;