CELEX: C2003/289/34
Language: en
Date: 2003-11-29 00:00:00
Title: Case C-448/03: Action brought on 24 October 2003 by the Commission of the European Communities against the French Republic

29.11.2003             EN                         Official Journal of the European Union                                         C 289/17
Action brought on 21 October 2003 by the Commission                       Furthermore, the requirements seem to exceed what is necess-
of the European Communities against the Grand Duchy                       ary to achieve the objective pursued. The requirement of prior
                          of Luxembourg                                   authorisation constitutes an obstacle, given that a supplier of
                                                                          services must often work under time pressure in respect of
                                                                          customers established in Luxembourg and prior authorisation
                         (Case C-445/03)                                  and any delay in issuing it may make the supply of services
                                                                          impossible. The requirements of a contract for an indefinite
                                                                          period and previous employment of at least six months prior
                         (2003/C 289/33)                                  to the posting also seem disproportionate since the presence
                                                                          of the workers in question has no impact on the Luxembourg
                                                                          job market. As for the bank guarantee, such a charge
                                                                          discriminates against foreign suppliers of services already
                                                                          subject to fees in order to obtain a work permit in their
An action against the Grand Duchy of Luxembourg was                       Member State of establishment.
brought before the Court of Justice of the European Communi-
ties on 21 October 2003 by the Commission of the European
Communities, represented by M. Patakia, acting as Agent, with
an address for service in Luxembourg.
The Commission of the European Communities claims that
                                                                          Action brought on 24 October 2003 by the Commission
the Court should:
                                                                          of the European Communities against the French Republic
1.    Declare that:
                                                                                                  (Case C-448/03)
      —     by requiring an individual or collective work permit
                                                                                                  (2003/C 289/34)
            from a supplier of services established in another
            Member State where that supplier wishes to post its
            personnel made up of nationals of non-Member
            countries lawfully residing and working in that other
                                                                          An action against the French Republic was brought before the
            Member State and making the issue of that permit
            subject to considerations connected with the job              Court of Justice of the European Communities on 24 October
            market and to the existence of a contract of indefinite       2003 by the Commission of the European Communities,
            duration and of previous employment with the same             represented by K. Banks, acting as Agent, with an address for
                                                                          service in Luxembourg.
            supplier of services for at least 6 months;
      —     by requiring that the same supplier of services               The Commission of the European Communities claims that
            provide a bank guarantee in the minimum sum of                the Court should:
            LUF 60 000 (EUR 1 487,36),
                                                                          1.    Declare that, by not adopting the laws, regulations
      the Grand Duchy of Luxembourg has failed to fulfil its                    and administrative provisions necessary to comply with
      obligations under Article 49 EC;                                          Directive 98/44/EC of the European Parliament and of
                                                                                the Council of 6 July 1998 on the legal protection of
                                                                                biotechnological inventions (1) or, in any event, by not
2.    Order the Grand Duchy of Luxembourg to pay the costs.                     communicating those provisions to the Commission, the
                                                                                French Republic has failed to fulfil its obligations under
                                                                                Article 15 of that directive;
                                                                          2.    Order the French Republic to pay the costs.
Pleas in law and main arguments
The conditions for the posting to Luxembourg of workers who               Pleas in law and main arguments
are nationals of non-Member countries as part of a cross-
border supply of services are incompatible with Community
law, in particular with the freedom to provide services under             The time-limit fixed for the transposition of the directive
Article 49 EC. The imposition of such conditions on the                   expired on 30 July 2000.
supplier of services from another Member State discriminates
against that supplier by comparison with its competitors
established in the host Member State which may freely use                 (1) OJ L 213 of 30.07.1998, p. 13.
their own staff and also affects its capacity to supply the
services.