CELEX: C2002/202/12
Language: en
Date: 2002-08-24 00:00:00
Title: Case C-223/02: Action brought on 17 June 2002 by the Republic of Finland against the European Parliament and the Council of the European Union

C 202/10               EN                    Official Journal of the European Communities                                       24.8.2002
Action brought on 17 June 2002 by the Republic of                       Under the third paragraph of Article 5 EC, action by the
Finland against the European Parliament and the Council                 Community is not to go beyond what is necessary to achieve
                     of the European Union                              the objectives of the Treaty.
                         (Case C-223/02)                                According to settled case-law of the Court of Justice, the
                                                                        principle of proportionality requires that legislation, decisions
                         (2002/C 202/12)                                and other measures of the Community institutions must not
                                                                        exceed what is appropriate and necessary for attaining the
                                                                        objectives pursued. According to the Court of Justice, it is clear
                                                                        that where there is a choice between several appropriate
An action against the European Parliament and the Council of            measures, the least restrictive one must be chosen, and that
the European Union was brought before the Court of Justice              the disadvantages caused by measures must not be too great
of the European Communities on 17 June 2002 by the                      in relation to the objectives pursued.
Republic of Finland, represented by T. Pynnä, acting as Agent,
with an address for service in Luxembourg.
                                                                        Third plea in law: breach of the principle of
Finland claims that the Court should:                                   freedom to pursue an occupation
—     Annul Directive 2002/15/EC (1) of the European Parlia-
      ment and of the Council of 11 March 2002 on the                   Finland considers that by including self-employed drivers in
      organisation of the working time of persons performing            the scope of the directive the Parliament and the Council
      mobile road transport activities, in so far as it concerns        infringed the principle of the freedom to pursue an occupation.
      self-employed drivers;
                                                                        In the common constitutional tradition of the Member States
—     Order the Parliament and the Council to pay the costs.            it is regarded as an essential part of the freedom to pursue an
                                                                        occupation that an operator may decide for himself how long
                                                                        to work for the benefit of his undertaking and when to work.
                                                                        It is part of the basic nature of an undertaking that the operator
Pleas in law and main arguments                                         may invest his work as well as his capital in his undertaking.
                                                                        According to settled case-law of the Court of Justice, the
First plea in law: lack of competence                                   freedom to pursue an occupation is a general principle of
                                                                        Community law. Freedom to pursue an occupation is also
Finland considers that by including self-employed drivers in            recognised in the Charter of Fundamental Rights of the
the scope of the directive the Parliament and the Council               European Union. Under Article 15(1) of the Charter everyone
exceeded their powers.                                                  has the right to engage in work and to pursue a freely chosen
                                                                        or accepted occupation.
Article 71 EC and Article 137(2) EC were used as legal basis
for the directive. In Finland’s opinion, the question of the legal      According to the case-law of the Court of Justice, the freedom
basis must be assessed separately according to the groups               to pursue an occupation may be restricted only on condition
concerned, with respect to mobile employees and self-                   that the restriction is in fact in accordance with Community
employed drivers. Different aims were in the background to              objectives in the public interest and does not mean a dispro-
the proposed legislation concerning the working time of self-           portionate and intolerable interference which would endanger
employed drivers and of mobile employees. In the Com-                   the very substance of the rights guaranteed.
mission’s original proposal the directive was based, according
to the first recital in the preamble, specifically on Article 71
EC with respect to self-employed drivers.
                                                                        Fourth plea in law: impeding the activity of
Finland considers that neither of the provisions of the Treaty          small and medium-sized undertakings
used as legal basis confers power on the Community to
legislate on the working time of self-employed persons.                 Finland considers that by including self-employed drivers in
                                                                        the scope of the directive the Parliament and the Council
                                                                        infringed Article 137(2) EC and Article 157 EC.
Second plea in law: breach of the principle
of proportionality
                                                                        Article 137(2) EC requires that directives adopted under that
                                                                        provision must avoid imposing administrative, financial and
Finland considers that by including self-employed drivers in            legal constraints in a way which would impede the activity of
the scope of the directive the Parliament and the Council               small and medium-sized undertakings. Article 157 EC for its
infringed the principle of proportionality under the third              part requires the Community to promote in its action the
paragraph of Article 5 EC.                                              operation of small and medium-sized undertakings.
 ---pagebreak--- 24.8.2002              EN                     Official Journal of the European Communities                                      C 202/11
The restrictions in the directive in fact affect specifically small      income tax prepayment levied in the Member State in question,
and medium-sized undertakings. Restricting working time                  whereas the income tax which a debtor resident in another
would weaken the competitive position of those undertakings,             Member State is obliged to pay in his State of residence is not
since their situation differs from that of the owner of a large          taken into account as a deduction, so that the attachable part
undertaking. It follows from the division of work within a               is greater in the latter case in being determined on the basis of
large undertaking that the persons responsible for driving can           the gross and not the net amount of the pension?
use the whole time permitted by the directive for driving.
The management and development of the business are the
responsibility of different persons, whose working time the
provisions of the directive do not restrict in any way.
Fifth plea in law: failure to comply with the
duty to state reasons                                                    Reference for a preliminary ruling by the Tribunale di
                                                                         Gela — Ufficio del Giudice per le Indagini Preliminari by
Finland considers that by including self-employed drivers in             order of that Court of 19 June 2002 in criminal proceed-
the scope of the directive the Parliament and the Council                  ings against Marco Antonio Saetti and Andrea Frediani
infringed Article 253 EC.
                                                                                                   (Case C-235/02)
According to settled case-law of the Court of Justice, the
obligation to state reasons under Article 253 EC is determined
by the nature of the legislation, decision or other measure. The                                  (2002/C 202/14)
statement of reasons must disclose clearly and unambiguously
the reasoning of the Community institution which has adopted
the measure, so that the reasons for the measure are clear to
                                                                         Reference has been made to the Court of Justice of the
those concerned by it and the Community court can perform
                                                                         European Communities by order of the Tribunale di Gela —
its function of review.
                                                                         Ufficio del Giudice per le Indagini Preliminari (Gela District
                                                                         Court, Chambers of the Judge in charge of Preliminary
Finland considers that those requirements are not satisfied in           Inquiries) of 19 June 2002, received at the Court Registry on
so far as the directive concerns self-employed drivers.                  26 June 2002, for a preliminary ruling in criminal proceedings
                                                                         against Marco Antonio Saetti and Andrea Frediani on the
(1) OJ L 80 of 23.3.2002, p. 35.                                         following questions:
                                                                         1.    Does pet coke fall within the definition of ‘waste’ as
                                                                               provided in Article 1 of Directive 75/442/EEC? (1)
                                                                         2.    Does use of pet coke as a fuel constitute ‘recovery’ within
                                                                               the meaning of Article 1 of Directive 75/442/EEC?
Reference for a preliminary ruling by the Korkein Oikeus                 3.    Does pet coke, when used as a fuel for production
by order of that Court of 14.06.2002 in the case of                            purposes, come within the category of waste which a
Heikki Antero Pusa against Osuuspankkien Keskinäinen                           Member State may exclude from the application of the
                          Vakuutusyhtiö                                        Community, following the adoption of specific rules in
                                                                               accordance with Article 2 of Directive 75/442/EEC?
                         (Case C-224/02)
                                                                         4.    Does permitting the use of petroleum coke at the place
                         (2002/C 202/13)                                       of production even for combustion processes intended
                                                                               for the generation of electric or thermal energy for
                                                                               purposes unconnected with refining processes, subject to
                                                                               the condition that emissions must be within the limits
Reference has been made to the Court of Justice of the                         laid down in the relevant provisions, even where its
European Communities by order of the Korkein Oikeus                            sulphur content exceeds 3 % of mass, constitute a
(Supreme Court) of 14.6.2002, received at the Court Registry                   necessary and sufficient measure to ensure that such
on 17.6.2002, for a preliminary ruling in the case of Heikki                   waste is recovered without endangering human health
Antero Pusa against Osuuspankkien Keskinäinen Vakuutus-                        and without the use of processes or methods likely harm
yhtiö on the following question:                                               the environment, in accordance with Article 4 of Directive
                                                                               75/442/EEC?
Does Article 18 of the EC Treaty or any other rule of
Community law preclude national legislation under which, in
an attachment carried out for the purpose of enforcing a                 (1) OJ L 194 of 25.7.1975, p. 39.
judgment concerning a money debt, that part of the pension
payable at regular intervals to the debtor which the attachment
may concern is determined by deducting from the pension the