CELEX: C2001/317/30
Language: en
Date: 2001-11-10 00:00:00
Title: Case C-344/01: Action brought on 12 September 2001 by the Federal Republic of Germany against the Commission of the European Communities

C 317/16                  EN                      Official Journal of the European Communities                                      10.11.2001
Pleas in law and main arguments                                              Action brought on 12 September 2001 by the Federal
                                                                             Republic of Germany against the Commission of the
                                                                                                 European Communities
The pleas in law and main arguments are similar to those
advanced in Case C-323/01 (2); the time-limit for transposition
expired on 5 June 2000.
                                                                                                      (Case C-344/01)
( 1) OJ L 330 of 5.12.1998, p. 1.
(2) See page 12 of this Official Journal.
                                                                                                      (2001/C 317/30)
                                                                             An action against the Commission of the European Communi-
Reference for a preliminary ruling from the Juzgado de lo                    ties was brought before the Court of Justice of the European
Social No 33 de Madrid by an order of 3 September                            Communities on 12 September 2001 by the Federal Republic
2001 in the case of Marı́a Paz Merino Gómez against                         of Germany represented by Wolf-Dieter Plessing, Ministerialrat
              Continental Industrias riel Caucho S.A.                        and Moritz Lumma, Oberregierungsrat, Bundesministerium
                                                                             der Finanzen, Graurheindorfter Str. 108, D-53117 Bonn.
                            (Case C-342/01)
                            (2001/C 317/29)
                                                                             The applicant claims that the Court should:
Reference has been made to the Court of Justice of the
European Communities by an order of the Juzgado de lo Social
No 33 de Madrid (Social Court, Madrid) of 3 September 2001,                  1.    Annul the Commissions decision of 11 July 2001
which was received at the Court Registry on 12 September                           (K(2001) 1795 final) excluding from Community finan-
2001, for a preliminary ruling in the case of Marı́a Paz Merino                    cing certain expenditure incurred by the Member States
Grómez against Continental Industrias riel Caucho S.A.. The                       under the Guarantee Section of the European Agricultural
Juzgado de lo Social No 33 de Madrid asks the Court of Justice                     Guidance and Guarantee Fund (EAGGF) (1).
to rule on the following questions:
1.      Where collective agreements between an employer and                  2.    Order the defendant to pay the costs.
        workers’ representatives fix the timing of leave for the
        entire workforce, and where the dates in question coincide
        with those of a worker’s maternity leave, do Article 7(1)
        of Directive 93/104 (1), Article 11 (2) (a) of Directive
        92/85 (2) and Article 5(1) of Directive 76/207 (3) guaran-
        tee that worker’s entitlement to take annual leave during
        a period other than the one agreed, which does not                   Pleas in law and main arguments
        coincide with her period of maternity leave?
2.      If the first question is answered in the affirmative, what is        —     Infringement of an essential procedural requirement
        the substantive scope of the entitlement to annual leave?                  (inadequate communication of the facts). The application
        Does it cover exclusively the four weeks’ leave referred to                of conclusions reached on the three Länder which were
        in Article 7(1) of Directive 93/104, or does it extend to                  examined for the purposes of suckler-cow premiums to
        the thirty calendar days laid down by national legislation,                the other Länder which were not examined does not
        in Article 38(1) of Royal Decree-Law 1/95, the Workers’                    appear to be justified per se having regard to the decentrali-
        Statute?                                                                   sed administrative system required by constitutional law
                                                                                   in Germany. The Federal Government, rather, regards the
                                                                                   grounds for refusing the premiums to those Länder which
(1) Council Directive 93/104/EC of 23 November 1993 concerning
     certain aspects of the organisation of working time (OJ L 307 of              were not examined in this case to be wholly unfounded
     13.12.1993, p. 18).                                                           on a number of grounds. For that reason, similar
(2) Council Directive 92/85/EEC of 19 October 1992 on the introduc-                conclusions were not reached in the area of suckler-cow
     tion of measures to encourage improvements in the safety and                  premiums following very recent studies, that is to say, in
     health at work of pregnant workers and workers who have                       Brandenburg and Niedersachsen in 1996 and in Rhein-
     recently given birth or are breastfeeding (OJ L 348 of 28.11.1992,            land-Pfalz in 1999.
     p. 1).
(3) Council Directive 76/207/EEC of 9 February 1976 on the
     implementation of the principle of equal treatment for men and                Therefore, by reversing the burden of proof so that it
     women as regards access to employment, vocational training and                fell on Germany without any concrete reasons, the
     promotion, and working conditions (OJ L 39 of 14.2.1976, p. 40).              Commission failed to fulfil its obligation to provide
                                                                                   evidence of an infringement of Community law in the
                                                                                   area of suckler-cow premiums.
 ---pagebreak--- 10.11.2001            EN                     Official Journal of the European Communities                                     C 317/17
—    Infringement of the principles of proper administration.                 to a reduction in the sulphur content of certain liquid
     In spreading the burden over all the Länder, the Com-                    fuels and amending Directive 93/12/EEC (1), or, in any
     mission departed from an administrative practice which                   event, by failing to communicate the same to the
     had pertained for many years without any reason. In the                  Commission, the Italian Republic has failed to fulfil its
     light of the legal scope of such a new procedure, it would               obligations under that directive;
     have been necessary on grounds of proper administration,
     foreseeability and transparency for the Commission to              —     order the Italian Republic to pay the costs.
     give notice of its change of policy and at least an outline
     thereof by way of a communication to the Member
     States. That applies a fortiori in so far as the question of
     supra-Länder burdens are of great political and legal
     significance in other Member States too, in particular             Pleas in law and main arguments
     those with federal or quasi-federal decentralised adminis-
     trative structures such as, for example, Austria and Spain.
     Beyond that, the question of the conditions on which it
     is possible to assume errors in a Member State as a whole          Article 249 EC, according to which directives are to be binding,
     on the basis of the conclusions of particular studies is of        as to the result to be achieved, upon each Member State to
     vital importance to all the other Member States too.               which they are addressed, implies an obligation for the Member
                                                                        States to comply with the time-limits for transposition laid
                                                                        down in the directives. That time-limit expired on 1 July 2000
—    Infringement of Article 10 EC. The duty of loyal co-               without the Italian Republic having enacted the provisions
     operation to which the Community institutions are                  necessary to comply with the directive mentioned in the
     subject involves a duty to take into account the underlying        Commissions pleadings.
     administrative structures of the Member States. Respect
     for the fact that the Federal Republic of Germany is
     divided into autonomous Länder requires that financial             (1) OJ L 121 of 11.5.1999, p. 13.
     corrections in respect of individual Länder can only be
     made where the EAGGF has reached its own conclusions
     as to a breach of Community law to the detriment of the
     Community budget in those Länder.
(1) Commission Decision 2001/557/EC (OJ L 200, 25.7.2001, p. 28).
                                                                        Action brought on 18 September 2001 by Commission
                                                                          of the European Communities against French Republic
                                                                                                 (Case C-351/01)
Action brought on 17 September 2001 by the Com-                                                 (2001/C 317/32)
mission of the European Communities against the Italian
                            Republic
                                                                        An action against the French Republic was brought before the
                                                                        Court of Justice of the European Communities on 18 Septem-
                         (Case C-350/01)                                ber 2001 by the Commission of the European Communities,
                                                                        represented by M. Patakia, acting as Agents, with an address
                         (2001/C 317/31)                                for service in Luxembourg.
An action against the Italian Republic was brought before the           The applicant claims that the Court should:
Court of Justice of the European Communities on 17 Septem-
ber 2001 by the Commission of the European Communities,
                                                                        1.    Declare that, by failing to adopt the laws, regulations
represented by Gregorio Valero Jordana and Roberto Amorosi,
                                                                              and administrative provisions necessary to comply with
acting as Agents.
                                                                              Directive 98/5/EC of the European Parliament and of the
                                                                              Council of 16 February 1998 to facilitate practice of the
                                                                              profession of lawyer on a permanent basis in a Member
The applicant claims that the Court should:                                   State other than that in which the qualification was
                                                                              obtained (1), the French Republic has failed to fulfil its
—    declare that, by failing to adopt the laws, regulations                  obligations under that directive; and
     and administrative provisions necessary to comply with
     Council Directive 1999/32/EC of 26 April 1999 relating             2.    Order the French Republic to pay the costs.