CELEX: C2003/019/34
Language: en
Date: 2003-01-25 00:00:00
Title: Case C-425/02: Reference for a preliminary ruling by the Cour Administrative (Grand-Duché de Luxembourg) by judgment of that Court of 21 November 2002 in the appeal brought by Johanna Maria Boor, née Delahaye, against the Minister for Public Service and Administrative Reform

25.1.2003              EN                     Official Journal of the European Communities                                       C 19/19
Pleas in law and main arguments                                          Pleas in law and main arguments
The Commission considers that it is the duty of the authorities          Article 249 EC, under which a directive shall be binding as to
of the United Kingdom to initiate, in due time, the procedures           the result to be achieved, upon each Member State, carries by
necessary for incorporating Directive 1999/31/EC into dom-               implication an obligation on the Member States to observe the
estic law so that such process is complete within the time limit         period for compliance laid down in the directive. That period
laid down, irrespective of the nature of such procedures, and            expired on 1 January 1990 without the United Kingdom of
to inform the Commission thereof.                                        Great Britain and Northern Ireland having enacted the pro-
                                                                         visions necessary to comply with the directive referred to in
                                                                         the conclusions of the Commission.
Since the United Kingdom has not informed the Commission
of the provisions adopted to comply fully with the Directive,
and since the Commission is in possession of no other
information enabling it to conclude that the United Kingdom              (1 ) OJ L 194, 25.07.1975, p. 23.
                                                                         (2 ) OJ L 42, 12.02.1987, p. 43.
has adopted the necessary provisions, it is compelled to assume
that the United Kingdom has not yet adopted such provisions
and has thus failed to fulfil its obligations under the Directive.
( 1) OJ L 182, 16.07.1999, p. 1.
                                                                         Reference for a preliminary ruling by the Cour Adminis-
                                                                         trative (Grand-Duché de Luxembourg) by judgment of
                                                                         that Court of 21 November 2002 in the appeal brought
                                                                         by Johanna Maria Boor, née Delahaye, against the Minister
Action brought on 22 November 2002 by the Com-                                   for Public Service and Administrative Reform
mission of the European Communities against the United
       Kingdom of Great Britain and Northern Ireland
                                                                                                  (Case C-425/02)
                         (Case C-424/02)
                                                                                                   (2003/C 19/34)
                          (2003/C 19/33)
                                                                         Reference has been made to the Court of Justice of the
An action against the United Kingdom of Great Britain and                European Communities by order of the Cour Administrative
Northern Ireland was brought before the Court of Justice of              (Grand-Duché de Luxembourg) (Administrative Court, Grand
the European Communities on 22 November 2002 by the                      Duchy of Luxembourg) of 21 November 2002, received at the
Commission of the European Communities, represented by                   Court Registry on 25 November 2002, for a preliminary ruling
X. Lewis and M. Konstantinidis, acting as agents, with an                in the appeal brought by Johanna Maria Boor, née Delahaye,
address for service in Luxembourg.                                       against the Minister for Public Service and Administrative
                                                                         Reform on the following question:
The Applicant claims that the Court should:
                                                                         Having regard to the provisions of Directives 77/187/EEC (1),
1)    declare that by failing to adopt the laws, regulations             98/50/EC (2) and 2001/23/EC (3) identified herein, in the event
      or administrative provisions necessary to comply with              of the transfer of an undertaking from a non-profit-making
      Article 3(1) of Council Directive 75/439/EEC requiring             association, which is a legal person under private law, to the
      Member States to take the measures necessary to give               State as transferee, is it permissible for the transferor’s rights
      priority to the processing of waste oils by regeneration (1),      and obligations to be taken over only in so far as they are
      as amended by Directive 87/101/EEC on waste oils ( 2) or,          compatible with the State’s own rules of public law, in
      in any event, by failing to notify such provisions to the          particular in the area of remuneration, where the detailed
      Commission, the United Kingdom of Great Britain and                provisions and amounts of compensation are laid down by
      Northern Ireland has failed to fully fulfil its obligations        grand ducal regulation, bearing in mind that the status of
      under that Directive;                                              public-sector employee confers legal benefits in the areas of,
                                                                         inter alia, career development and job stability on the staff
2)    order the United Kingdom of Great Britain and Northern             concerned, and that, in the event of disagreement as regards
      Ireland to pay the costs.                                          ‘substantial changes’ to the employment relationship within
 ---pagebreak--- C 19/20                   EN                      Official Journal of the European Communities                                     25.1.2003
the meaning of Article 4(2) of those Directives, the staff                         cations, annul the decision of the Court of Auditors in
concerned retain the right to request termination of that                          that respect and adopt any appropriate consequent
relationship according to the detailed rules in the relevant                       measure;
provisions?
                                                                             —     acquire the documents submitted by the end of the period
( 1) Council Directive 77/187/EEC of 14 February 1977 on the
                                                                                   prescribed by the notice confirming the claims made
     approximation of the laws of the Member States relating to the                relating to whether Mr. Hervé meets all the requirements;
     safeguarding of employees’ rights in the event of transfers of
     undertakings, businesses or parts of businesses (OJ L 61 of
     05.03.1977, p. 26).                                                     —     in any event, find that the requirements do not comply
( 2) Council Directive 98/50/EC of 29 June 1998 amending Directive                 with the requirements objectively discernable from the
     77/187/EEC on the approximation of the laws of the Member                     competition notice, annul Mr Hervé’s appointment and
     States relating to the safeguarding of employees’ rights in the               adopt any appropriate consequent measure;
     event of transfers of undertakings, businesses or parts of businesses
     (OJ L 201 of 17.07.1998, p. 88).
( 3) Council Directive 2001/23/EC of 12 March 2001 on the approxi-           —     in the event that the applicant’s is the only candidature
     mation of the laws of the Member States relating to the
                                                                                   suited to the post and meeting the requirements to have
     safeguarding of employees’ rights in the event of transfers of
     undertakings, businesses or parts of undertakings or businesses               been put forward for appointment as Secretary General
     (OJ L 82 of 22.03.2001, p. 16).                                               of the Court of Auditors, declare that Mr Di Pietro is
                                                                                   entitled to be appointed Secretary General, in view of the
                                                                                   fact that the notice did not reserve a discretion to the
                                                                                   Court regarding the appointment of those candidates
                                                                                   deemed suitable;
                                                                             —     order the reimbursement of the costs and fees disbursed
                                                                                   by the applicant and compensation for the damage
                                                                                   suffered as a result of not being appointed to the post.
Appeal brought on 25 November 2002 by Giuseppe Di
Pietro against the order delivered on 27 September 2002
by the Third Chamber of the Court of First Instance of
the European Communities in Case T-254/01 between
Giuseppe Di Pietro and Court of Auditors of the European
                              Communities                                    Pleas and main arguments
                           (Case C-427/02 P)
                                                                             The applicant challenges the fact that the Court of First
                                                                             Instance declared his application manifestly inadmissible and
                             (2003/C 19/35)                                  upheld the objection of the Court of Auditors that his
                                                                             statement of 2 August 2001 cannot be deemed to be a
                                                                             complaint.
An appeal against the order delivered on 27 September 2002
by the Third Chamber of the Court of First Instance of the                   According to the Court of First Instance, in his letter of
European Communities in Case T-254/01 between Giuseppe                       2 August 200 the applicant does not challenge the legality of
Di Pietro and Court of Auditors of the European Communities                  the decision which adversely affects him nor does it seek any
was brought before the Court of Justice of the European                      means of settling the dispute out of court. Instead, it merely
Communities on 25 November 2002 by Giuseppe Di Pietro,                       sets out a number of questions and requires the production of
represented by Giuseppe Monforte, whose chambers are in                      a number of documents. Therefore the aforementioned letter
Messina.                                                                     cannot be deemed a complaint within the meaning of
                                                                             Article 90(2) of the Staff Regulations.
The appellant claims that the Court should:
                                                                             The applicant argues that the Court of First Instance is wrong
—      acquire the documents relating to the candidates admitted
                                                                             in that his statement of 2 August 2001 contains a request that
       to the examination;
                                                                             action be taken.
—      find that the documents do not comply with the require-
       ments objectively discernable from the competition
       notice, declare inadmissible the non-complying appli-