CELEX: C2004/035/09
Language: en
Date: 2004-02-07 00:00:00
Title: Case C-27/04: Action brought on 28 January 2004 by the Commission of the European Communities against the Council of the European Union

7.2.2004                EN                          Official Journal of the European Union                                             C 35/5
Pleas in law and main arguments                                             Communities, represented by D. Martin, acting as Agent, with
                                                                            an address for service in Luxembourg.
The Commission considers that the fact that the contract at
issue in this case falls within the scope of Council Directive              The Commission of the European Communities claims that
92/50/EEC (1) as amended by European Parliament and Council                 the Court should:
Directive 97/52/EC (2) does not preclude the application of
the principle enunciated in Telaustria (3) deriving from the                1.    declare that, by adopting Article 7(2) and the fifth
fundamental freedoms laid down in the Treaty and the                              subparagraph of Article 19 of the Law of 12 February
application of general principles which are given specific                        1999 setting up parental leave and leave for family
expression in those fundamental freedoms. The obligation on                       reasons, the Grand Duchy of Luxembourg has failed to
Member States to comply with general principles is confirmed,                     fulfil its obligations under Clause 2(1) of Part II of the
within the Directive itself by Article 3(2) (see above), a                        Annex to Council Directive 96/34/EC of 3 June 1996 on
general obligation on contracting authorities to avoid all                        the framework agreement on parental leave concluded by
discrimination between service providers. That obligation is                      UNICE, CEEP and the ETUC (1), as regards:
incumbent on the Irish authorities in respect of Annex 1B
services just as much as in respect of Annex 1A services.                         —     the substitution of maternity leave for parental leave,
                                                                                        and
It is submitted that the Commission’s analysis is the only one
which can be regarded as consistent with the internal market                      —     the date from which individual rights to parental
logic of the Treaty. The Court’s case-law clearly holds that the                        leave are granted;
Treaty provisions on the freedoms of establishment and service              2.    order the Grand Duchy of Luxembourg to pay the costs.
provision impose obligations on Member States in respect of
the award of public contracts outside the scope of the
directives. This applies to types of contracts (such as service
                                                                            Pleas in law and main arguments
concessions) that are not specifically covered and also to
contracts of types which are covered but where the value falls
below the thresholds set in the various directives.                         1. Maternity leave has a completely different purpose from
                                                                            that of parental leave. Moreover, Clause 2(1) of the framework
That being so, the Commission submits that it would run                     agreement expressly provides that parental leave is an individ-
directly counter to the logic of the internal market if, whereas            ual right to leave of at least three months’ duration. The
Community law requires an appropriate level of advertising in               obligatory termination of parental leave when maternity leave
such situations even if the contract falls outside the scope of             begins is therefore not compatible with that provision of the
the directives because of its structure or value, it were                   Annex to Directive 96/34. The woman whose maternity leave
nevertheless open to Member States not to advertise in any                  begins during her parental leave must, in the light of the
way contracts (whose value is above the financial thresholds)               individual right to parental leave of at least three months
solely on the grounds that the services to which they relate fall           conferred on her by Clause 2(1) of the framework agreement,
within the scope of Annex 1B of the Directive.                              be able to defer the portion of her parental leave which she
                                                                            has not been able to take because of her maternity leave.
                                                                            2. By limiting its application to children born or adopted
(1) Directive of 18 June 1992 relating to the coordination of               after 31 December 1998, the Luxembourg authorities have
    procedures for the award of public service contracts (OJ L 209,         added a condition which is not authorised by the Directive.
    24.07.1992, p. 1).
(2) Directive of 13 October 1997 amending Directives 92/50/
    EEC, 93/36/EEC and 93/37/EEC concerning the coordination of             (1) OJ L 145 of 19.06.1996, p. 4.
    procedures for the award of public service contracts, public supply
    contracts and public works contracts respectively (OJ L 328,
    28.11.1997, p. 1).
(3) Case C-324/98, Telaustria Verlags GmbH v Telekom Austria AG,
    ECR[2000], p.I-10745.
                                                                            Action brought on 28 January 2004 by the Commission
                                                                            of the European Communities against the Council of the
                                                                                                     European Union
Action brought on 12 December 2003 by the Commission                                                  (Case C-27/04)
of the European Communities against the Grand Duchy
                         of Luxembourg                                                                (2004/C 35/09)
                         (Case C-519/03)
                          (2004/C 35/08)                                    An action against the Council of the European Union was
                                                                            brought before the Court of Justice of the European Communi-
                                                                            ties on 28 January 2004 by the Commission of the European
An action against the Grand Duchy of Luxembourg was                         Communities, represented by M. Petite, A. van Solinge and
brought before the Court of Justice of the European Communi-                P. Aalto, acting as Agents, with an address for service in
ties on 12 December 2003 by the Commission of the European                  Luxembourg.
 ---pagebreak--- C 35/6                 EN                       Official Journal of the European Union                                          7.2.2004
The Commission of the European Communities claims that                        under Article 104(9) EC may not be adopted unless
the Court should:                                                             a finding has first been made in a decision under
                                                                              Article 104(8) EC. In proceeding to such a vote, the
1.    declare that:                                                           Council did not comply with the conditions for the
                                                                              application of Article 104(9) EC. Even if that were
      —     the decisions not to adopt the formal instruments                 possible, the Council would have been required to provide
            contained in the Commission’s recommendations                     an adequate statement of reasons explaining its decision
            pursuant to Article 104(8) and (9) EC;                            not to adopt the recommendation when it in fact agreed
                                                                              with the Commission’s economic analysis. The Council
      —     the ‘Council conclusions on assessing the actions
                                                                              accordingly did not comply with the obligation to state
            taken by France in response to recommendations of
                                                                              reasons laid down in Article 253 EC.
            the Council according to Article 104(7) of the
            Treaty establishing the European Community and              —     holding the excessive deficit procedure in abeyance.
            considering further measures for deficit reduction in
            order to remedy the situation of excessive deficit’;              It follows from the Council’s conclusions that it agrees
                                                                              with the analysis of the Commission, an analysis which
            and                                                               necessarily results in the conclusion that the conditions
                                                                              for holding the procedures in abeyance were not met.
      —     the ‘Council conclusions on assessing the actions                 The Council’s decision to hold the procedures in abeyance
            taken by Germany in response to recommendations                   therefore does not comply with the substantive con-
            of the Council according to Article 104(7) of the                 ditions in Article 9 of Regulation (EC) No 1467/97 (1) or
            Treaty establishing the European Community and                    the obligation to state reasons laid down in
            considering further measures for deficit reduction in             Article 253 EC. Nor was the decision to hold the
            order to remedy the situation of excessive deficit’               procedures in abeyance taken in compliance with the
      adopted by the Council on 25 November 2003 are                          voting rules laid down in Article 104(13) EC since it was
      unlawful and should be annulled;                                        taken by the Member States which have adopted the
                                                                              Euro, and not on the vote of the 14 Member States other
2.    order the Council to pay the costs.                                     than the State concerned. If the voting rules had been
                                                                              observed, it is possible that the conclusions would not
                                                                              have been adopted for want of a qualified majority.
Pleas in law and main arguments                                         —     recourse to an instrument not envisaged by the Treaty.
                                                                              When the Commission submitted recommendations for
The system established by the Treaty, in particular the                       decisions under Article 104(8) and (9) EC to the Council,
procedure under Article 104 EC, provides that, if the Com-                    the latter adopted ‘conclusions’, a measure not envisaged
mission considers that there is an excessive deficit in a Member              by the Treaty, in particular Article 104. The institutions
State, the Council is obliged to decide whether that is the case              are required to keep to the instruments and procedures
and, if so, to specify binding measures to remedy it as soon as               prescribed by the Treaty. It was therefore not open to the
possible. However, although the Council agrees with the                       Council to adopt measures other than those provided for
economic analysis upon which the Commission founded its                       in Article 104 EC, namely decisions which are binding
recommendations, it departed from the precise and binding                     measures, in particular as its ‘conclusions’ contain
framework provided for by Article 104 EC and instead adopted                  elements characteristic of decisions such as the holding
an instrument which is not envisaged by the Treaty and is                     of the procedures in abeyance and recommendations to
contrary to the system established by it.                                     the Member States. The Council cannot purely and simply
                                                                              exempt itself from the obligation to adopt decisions in
The action decided upon by the Council on 25 November                         conformity with the rules of the Treaty and of secondary
2003 involves measures which produce legal effects and are                    legislation, particularly when it agrees with the reasoning
contrary to the Treaty:                                                       on which the recommendations for decisions submitted
                                                                              to it by the Commission are founded.
—     the decisions not to adopt the formal instruments con-
      tained in the Commission’s recommendations pursuant               —     modification of recommendations decided upon by the
      to Article 104(8) and (9) EC.                                           Council under Article 104(7) EC.
      The Council did not observe the precise and binding                     It was not open to the Council to adopt recommendations
      procedure which it must follow when called upon to                      contrary to those provided for by its own decisions,
      apply Article 104(8) and (9) EC. It did not make the                    adopted under Article 104(7) EC, without following the
      finding required of it when it makes recommendations to                 Treaty procedures.
      a Member State which has an excessive deficit and those
      recommendations do not prompt effective action. It                (1) Council Regulation (EC) No 1467/97 of 7 July 1997 on speeding
      nevertheless voted on recommendations of the Com-                     up and clarifying the implementation of the excessive deficit
      mission under Article 104(9) EC. However, a decision                  procedure (OJ L 209, 2.8.1997, p. 6).