CELEX: C2002/305/16
Language: en
Date: 2002-12-07 00:00:00
Title: Case C-341/02: Action brought on 25 September 2002 by the Commission of the European Communities against the Federal Republic of Germany

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
 ---pagebreak--- 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.