CELEX: C2002/305/15
Language: en
Date: 2002-12-07 00:00:00
Title: Case C-339/02: Action brought on 23 September 2002 by the Commission of the European Communities against the Portuguese Republic

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