CELEX: C1997/212/39
Language: en
Date: 1997-07-12 00:00:00
Title: Action brought on 23 May 1997 by the Commission of the European Communities against the Federal Republic of Germany (Case C-198/97)

12 . 7. 97                EN                Official Journal of the European Communities                                 No C 212/21
           the last day of her employment, with the result             Action brought on 23 May 1997 by the Commission of
           that employees who took unpaid leave ( including            the European Communities against the Federal Republic
           unpaid maternity leave ) during the periods referred                                       of Germany
           to would usually have a lower final pensionable                                        ( Case C-198/97)
           salary than they would have had if they had not
           taken such unpaid leave;                                                                 ( 97/C 212/39 )
     (c ) a provision whereby entitlement to a voluntary               An action against the Federal Republic of Germany was
           redundancy payment is calculated according to a             brought before the Court of Justice of the European
           formula which includes a factor representing                Communities on 23 May 1997 by the Commission of the
           service ( which is calculated as pensionable service        European Communities, represented by Claudia Schmidt,
           under the pension scheme plus any period of                 of its Legal Service, assisted by Alexander Bohlke,
           actual service before joining the scheme ), where           Rechtsanwalt, with an address for service in Luxembourg
           that service does not accrue during any period of           at the office of Carlos Gomez de la Cruz, of the
           unpaid leave (which term includes a period of               Commission's Legal Service, Wagner Centre, Kirchberg.
           unpaid maternity leave when the woman is no
           longer in receipt of contractual or statutory               The applicant claims that the Court should:
           maternity pay ) when the employee does not pay
           contributions into the employer's contributory              ( a ) declare the Federal Republic of Germany in breach of
           pension scheme;                                                   its obligations under Articles 4 ( 1 ) and 6 ( 1 ) of
                                                                             Council Directive 76/ 160/EEC of 8 December 1975
     ( d ) a practice whereby entitlement to a voluntary                     concerning the quality of bathing water ( OJ No L 31 ,
           redundancy payment is calculated according to a                   5 . 2 . 1976, p. 1 ) in that, in relation to the original
                                                                             Bundeslander:
           formula which includes a factor representing a
           week's pay, where the amount of a week's pay is                   — it failed to take the necessary measures to ensure
           based on final pensionable salary as mentioned in                      that, within 10 years following notification of the
           ( b) above, with the result that an employee who                       Directive on 10 December 1975 , the quality of
           took unpaid leave ( including unpaid maternity                         bathing water conformed to the limit values set in
           leave ) during the period of 12 months ending on                       accordance with Article 3 thereof,
           the last day of her employment would receive a
           lower redundancy payment than she would have                      — and failed to carry out sampling operations with
           had if she had not taken such unpaid leave ?                           the minimum frequency laid down in the Annex to
                                                                                  the Directive .
2 . What difference, if any, would it make to the answer
                                                                       ( b ) order the Federal Republic of Germany to pay the
     to question 1 , if the woman were entitled to continue                  costs .
     to accrue pensionable service during a period of
     unpaid maternity leave by paying:                                 Pleas in law and main arguments adduced in support:
     ( a ) a member's contributions; or                                — Infringement of Article 4 ( 1 ) of the Directive:
     ( b ) a member's and the employer's contributions to                    The statistics provided by the Federal Republic of
           the pension scheme ?                                              Germany, as contained in the published annual reports
                                                                             to the Commission pursuant to Article 13 of the
3 . What difference, if any, does it make to the answer to                   Directive, show that in the Federal Republic of
     question 1 , or any part thereof, if a considerably                     Germany a large proportion of bathing water still does
     greater proportion of female employees than of male                     not comply with the mandatory limit values laid down
     employees have had their pay ( whether entitlement to                   by the Directive . It can be deduced from the report to
     a pension or a voluntary redundancy payment )                           the Commission on the 1995 bathing season that, of
     reduced because they have taken unpaid leave                            the 446 coastal bathing areas, 11,9% do not satisfy
     ( including unpaid maternity leave )?                                   the limits in the Directive . Taking into account the
                                                                             further consideration that 6,5 % of bathing areas on
                                                                             the German coasts have not been sufficiently
4 . Is it contrary to the principle of equal pay for equal                   monitored, these figures are significant. The situation
     work if a woman on maternity leave, having received                     regarding the 1 822 German inland bathing areas is
     the contractual and/or statutory maternity pay to                       even worse . Whilst only 10,3% fail to comply with
     which       she   is   entitled under   her    contract   of
                                                                             the limit values, 42,5 % of them have not been
     employment and/or national legislation, does not                        sufficiently monitored .
     receive any further contractual maternity pay in
     circumstances where an employee who is absent from                      It is irrelevant, even if true, that, if the proposal for
     work by reason of sickness, for the same period as the                  amendment by the Commission were to be accepted
     woman is absent from work on maternity leave to                         by the Council, and if, in particular, the 'total
     which she is entitled, would receive contractual sick                   coliform' microbiological parameter were to disappear
     pay ?                                                                   and be replaced by a mandatory limit value for
                                                                             Streptococcus faec., part of the infringements
                                                                             ascertained would become nugatory.
 ---pagebreak--- No C 212/22             EN                     Official Journal of the European Communities                                      12 . 7 . 97
     Even the instances expressly admitted by the Federal                 Adviser, and Dimitris Triantafillou, of its Legal Service,
     Republic of one-off infringements of the maximum                     with an address for service in Luxembourg at the office of
     limits would, in the event of the proposal for                       Carlos Gomez de la Cruz, of its Legal Service, Wagner
     amendment being accepted by the Council, still not                   Centre, Kirchberg.
     lose their significance so long as the Federal Republic
     continues on average to carry out only eight to 10                   The applicant claims that the Court should :
     sampling operations per bathing season.
— Infringement of Article 6 (1 ) of the Directive :                       1 . declare that, by not giving notification of the laws,
                                                                               regulations and administrative provisions necessary to
                                                                               comply with Council Directive 93/76/EEC of
     The report to the Commission for 1995 shows that                          13 September 1993 to limit carbon dioxide emissions
     6,5 % of bathing areas on German coasts and 42,5 %                        by improving energy efficiency ( Save ) ('), or by not
     of German internal bathing areas were not sufficiently                    having adopted the measures necessary to comply with
     monitored in 1995 .
                                                                               it, the Hellenic Republic has failed to fulfil its
                                                                               obligations under that Directive;
                                                                          2 . order the Hellenic Republic to pay the costs.
Reference for a preliminary ruling by the Royal Court of                  Pleas in law and main arguments adduced in support:
Jersey by order of that court dated 28 April 1997, in the
case of Emidio Marco Rios against His Excellency the                      Under Article 10 of Directive 93/76/EEC, the Member
                  Lieutenant Governor of Jersey                           States were to adopt the measures necessary to comply
                          ( Case C-l 99/97 )                              with its provisions by 31 December 1994 and to inform
                                                                          the Commission thereof.
                             ( 97/C 212/40 )
                                                                          The Commission notes that the Hellenic Republic has not
Reference has been made to the Court of Justice of the                    yet brought its legislation into line with the Directive ,
European Communities by an order of the Royal Court of                    thereby failing to fulfil its obligations under Article 189 of
Jersey dated 28 April 1997, which was received at the                     the EC Treaty and Article 10 of the Directive .
Court Registry on 23 May 1997, for a preliminary ruling
in the case of Emidio Marco Rios and His Excellency the
                                                                          (') OJ No L 237, 22 . 9 . 1993 , p . 28 .
Lieutenant Governor of Jersey on the following questions:
1 . On the premise that British citizens are not liable to
     immigration control in, or to be deported from, Jersey,
     does Article 4 of the third Protocol to the Act of
     Accession of the United Kingdom to the European
     Communities (') have the effect that nationals of                    Reference       for a preliminary ruling by the
     another Member State are equally not liable to be                    Arrondissementsrechtbank Amsterdam by judgment of
     deported from Jersey ?                                               that court of 22 May 1997 in the case of Fitzwilliam
                                                                          Executive Search Limited, trading under the name of
2 . If the answer to the first question is 'No', does                     Fitzwilliam Technical Services (FTS ) against Bestuur van
     Article 4 prohibit the competent authorities in Jersey               het Landelijk Instituut Sociale Verzekeringen, successor
      from deporting a national of another Member State                   in law of the Bestuur van de Nieuwe Algemene
      save where such deportation is justified on grounds of                                     Bedrij fsvereniging
     public policy, public security or public health ?                                             ( Case C-202/97 )
                                                                                                     ( 97/C 212/42 )
 (') Official Journal, English Special Edition, 27. 3 . 1972, p. 164 .
                                                                          Reference has been made to the Court of Justice
                                                                          of the European Communities by judgment of the
                                                                          Arrondissementsrechtbank ( District Court) Amsterdam of
                                                                          22 May 1997, received at the Court Registry on 27 May
Action brought on 26 May 1997 by the Commission of                         1997, for a preliminary ruling in the case of Fitzwilliam
  the European Communities against the Hellenic Republic                  Executive Search Limited, trading under the name of
                           ( Case C-201 /97                               Fitzwilliam Technical Services ( FTS ) against Bestuur van
                                                                          het Landelijk Instituut Sociale Verzekeringen, successor in
                              ( 97/C 212/41 )                             law of the Bestuur van de Nieuwe Algemene
                                                                          Bedrijfsvereniging, on the following questions:
 An action against the Hellenic Republic was brought
 before the Court of Justice of the European Communities                   1 . ( a ) May the words 'undertaking to which he is
 on 26 May 1997 by the Commission of the European                                    normally attached' in Article 14 ( 1 ) ( a ) of EEC
 Communities, represented by Hendrik Van Lier, Legal                                 Regulation No 1408/71 be supplemented by other