CELEX: C2000/063/28
Language: en
Date: 2000-03-04 00:00:00
Title: Case C-493/99: Action brought on 21 December 1999 by the Commission of the European Communities against the Federal Republic of Germany

4.3.2000                 EN                   Official Journal of the European Communities                                       C 63/15
     attribute all of the measures in support of Stardust to the         Pleas in law and main arguments
     allegedly careless conduct of SBT and Altus prior to debt
     restructuring. This notion appears only in the contested            — Infringement of the freedom to provide
     decision and is none the less the key concept therein.                  services.
                                                                             (a) Bar to participation in a construction consortium: the
                                                                                  provision in Paragraph 1(1), second sentence, of the
                                                                                  Gesetz zur Regelung der gewerbsmässigen Arbeit-
                                                                                  nehmerüberlassung (Law governing commercial
                                                                                  deployment of employees) (‘the AÜG’), under which
                                                                                  the secondment of employees to carry out work
Action brought on 21 December 1999 by the Commission                              does not, under specified circumstances, constitute a
of the European Communities against the Federal Repub-                            deployment of employees for which authorisation
                           lic of Germany                                         is required, is of considerable importance to the
                                                                                  construction industry. However, since the exception is
                                                                                  predicated on the condition that German collective
                          (Case C-493/99)                                         agreements within the same (German) economic sector
                                                                                  apply to all members of a consortium, construction
                                                                                  companies from other Member States can participate
                           (2000/C 63/28)                                         in a consortium only if they maintain a subsidiary
                                                                                  in Germany with construction workers working in
An action against the Federal Republic of Germany was                             Germany and are thus able to be party to collective
brought before the Court of Justice of the European Communi-                      agreements. They cannot deploy employees from their
ties on 21 December 1999 by the Commission of the European                        place of establishment or their subsidiaries in other
Communities, represented by Jörn Sack, Legal Adviser, acting                      Member States to a consortium established in Ger-
as Agent, with an address for service in Luxembourg at the                        many, which normally takes the form of a private-law
office of Carlos Gómez de la Cruz, of the Commission’s Legal                     company, without the consortium thereby forfeiting
Service, Wagner Centre C 254, Kirchberg.                                          the possibility of invoking the abovementioned dero-
                                                                                  gating provision, with the result that such employees
                                                                                  would be unlawfully deployed. For that reason, under-
The applicant claims that the Court should:                                       takings from other Member States covered by non-Ger-
                                                                                  man collective agreements within the same economic
(1) declare that the Federal Republic of Germany has failed to                    sector are not at all accepted in such consortia set up
     fulfil its obligations under Articles 43 EC and 49 EC, by                    or to be set up in Germany. To that extent they cannot
     providing through legislation that construction companies                    exercise the freedom to provide services guaranteed by
     established in other Member States may:                                      the EC Treaty.
     (a) provide transfrontier services on the German market                 (b) Exclusion from the deployment of employees among
          as part of a consortium (Arbeitsgemeinschaft) only if                   construction companies: the deployment of employees
          they have a registered office or at least a subsidiary in               for work normally carried out by workers has in
          Germany employing their own staff and have con-                         principle been unlawful within the construction indus-
          cluded a company-wide collective agreement for those                    try since 1 January 1998 under Paragraph 1b, first
          staff;                                                                  sentence, of the AÜG. The second sentence of that
                                                                                  provision, however, permits this between firms in the
     (b) deploy workers on a transfrontier basis to other                         construction industry if they are covered by the same
          construction companies only if they have a registered                   framework and social-welfare collective agreements or
          office or at least a subsidiary in Germany employing                    are generally bound by such agreements. Undertakings
          their own staff and are, as members of a German                         (in the vast majority foreign undertakings) which do
          employers’ association, covered by a framework and                      not satisfy those conditions are thereby also precluded
          social-welfare collective agreement;                                    from providing so-called mutual assistance (Kollegen-
                                                                                  hilfe) to German companies, or even to companies in
     (c) not establish a subsidiary in Germany which is recog-                    Germany belonging to their own commercial group.
          nised as a construction company if its staff is respon-
          sible exclusively for duties concerning administration,            Grounds of public safety and health can in the present case
          marketing, planning, supervision and/or wages and                  be discounted from the outset as a basis for justification
          salaries; in order to be so recognised, such a subsidiary          (Article 55 EC in conjunction with Article 46 EC). Even if
          must, within the labour area of Germany, employ                    one wished to consider the social order in general as
          workers who provide construction services accounting               constituting part of public policy of a Member State within
          for more than 50 % of the company’s total working                  the meaning of Article 46, the German measures cannot
          time;                                                              be justified on that basis either, since they are general in
                                                                             nature and do not in any wise focus on the question
(2) order the Federal Republic of Germany to pay the costs of                whether the wages and social provisions guaranteed to the
     the proceedings.                                                        employees may in fact point to ‘pay-related dumping’.
 ---pagebreak--- C 63/16                EN                   Official Journal of the European Communities                                       4.3.2000
— Infringement of the freedom of estab-                                Pleas in law and main arguments
    lishment.
                                                                       The Member States are required by the binding character of
                                                                       the third paragraph of Article 249 EC and of Article 10 EC (ex
    In view of the fact that in Germany only a company whose
                                                                       third paragraph of Article 189 and Article 5 of the EC Treaty)
    employees carry out construction work accounting for
                                                                       to adopt the measures needed to transpose directives into
    more than 50 % of the company’s total working time can
                                                                       national law before the expiry of the period laid down for that
    be treated as being a construction company, it makes little
                                                                       purpose and to communicate those measures immediately to
    sense for construction companies from other Member
                                                                       the Commission. That period expired on 21 November 1996
    States to establish separate subsidiaries in Germany
                                                                       without the Hellenic Republic having communicated to the
    employing exclusively commercial and technical staff (for
                                                                       Commission the provisions transposing the directive at issue
    instance, in order to secure or develop projects), since
                                                                       into national law.
    these are not in a position, should orders for work
    come in, to carry out the work through deployment of
    construction workers, from their other (foreign) subsidia-         (1) OJ L 319 of 12.12.1994, p. 14.
    ries or from the parent company. This also constitutes
    discriminatory treatment, inasmuch as German subsidiari-
    es of German construction undertakings continue to be
    treated as construction companies even if they do not
    themselves satisfy the 50 % rule.
                                                                       Action brought on 21 December 1999 by the Commission
                                                                       of the European Communities against the French Republic
                                                                                                (Case C-495/99)
                                                                                                 (2000/C 63/30)
                                                                       An action against the French Republic was brought before the
Action brought on 21 December 1999 by the Commission                   Court of Justice on 21 December 1999 by the Commission of
of the European Communities against the Hellenic Repub-                the European Communities, represented by Peter Oliver, Legal
                                lic                                    Adviser, acting as Agent, with an address for service in
                                                                       Luxembourg at the office of Carlos Gómez de la Cruz, Wagner
                                                                       Centre, Kirchberg.
                         (Case C-494/99)
                                                                       The applicant claims that the Court should:
                          (2000/C 63/29)
                                                                       1. declare that, by failing to adopt the laws, regulations
                                                                            and administrative provisions necessary to comply with
An action against the Hellenic Republic was brought before the              Council Directive 96/93/EC on the certification of animals
Court of Justice of the European Communities on 21 December                 and animal products (1), the French Republic has failed to
1999 by the Commission of the European Communities,                         comply with its obligations under that directive and under
represented by Maria Patakia, of its Legal Service, and Frank               the Treaty;
Benyon, Legal Adviser in its Legal Service, with an address for
service in Luxembourg at the office of Carlos Gómez de la             2. order the French Republic to pay the costs.
Cruz, of its Legal Service, Wagner Centre, Kirchberg.
                                                                       Pleas in law and main arguments
The Commission claims that the Court should:
                                                                       The mandatory nature of the provisions of Articles 249 and
                                                                       10 EC is such as to oblige Member States to which directives
— declare that, by not adopting and communicating to the               are addressed to adopt the measures necessary in order to
    Commission within the time-limit laid down in the laws,            transpose those directives into their national legal order within
    regulations and administrative provisions necessary to             the time-limit prescribed therein. The time-limit fixed by
    comply fully with Council Directive 94/56/EC (1) of                Article 9 of Directive 96/93/EC expired on 1 January 1998
    21 November 1994 establishing the fundamental prin-                but France has not adopted the necessary measures.
    ciples governing the investigation of civil aviation accidents
    and incidents, the Hellenic Republic has failed to fulfil its
    obligations under the Treaty and that directive;                   (1) JO L 13 of 16 January 1997, p. 18.
— order the Hellenic Republic to pay the costs.