Commission of the European Communities v Hellenic Republic.
Date: 1999-10-28
38 First of all, as regards the length of the precontentious procedure, it is sufficient to point out that, as the Court held in Case C-96/89 Commission v Netherlands [1991] ECR I-2461, at paragraph 15, the rules of Article 169 of the Treaty must be applied with no attendant obligation on the Commission to act within a specific period.
39 It is true that, in certain situations, the excessive duration of the precontentious procedure laid down by Article 169 may make it more difficult for the Member State concerned to refute the Commission's arguments and might thus infringe the rights of defence (Commission v Netherlands, cited above, paragraph 16). However, in the present case, there is no need to address the question whether or not the length of the precontentious procedure was excessive, as the Greek Government has furnished no evidence that the unusual length of the procedure had any effect on the way in which it has organised its defence.
40 As to the substantive merits of the case, it should be observed first of all, on the one hand, that the concept of pay, within the meaning of the second paragraph of Article 119, covers all forms of consideration, in cash or in kind and whether present or future, provided that the worker receives it, even indirectly, in respect of his employment from his employer (see, in particular, Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623, paragraph 23).
45 Secondly, as regards the difficulties pleaded by the Greek Government in complying with the principle of equality in the grant of family allowances, it should be observed that, according to the case-law of the Court, a Member State may not plead practical or administrative difficulties in order to justify non-compliance with the obligations and time-limits laid down in Community directives. The same holds true of financial difficulties, which are for the Member States to overcome by adopting appropriate measures (see, to that effect, Case C-42/89 Commission v Belgium [1990] ECR I-2821, paragraph 24).
46 Thirdly, as regards the legal status of collective agreements in Greece and the autonomy of the social partners in negotiating those agreements, it is clear from the case-law that Member States may leave the implementation of the principle of equal pay in the first instance to representatives of management and labour (Case 143/83 Commission v Denmark [1985] ECR 427, paragraph 8).
47 That possibility does not, however, discharge them from the obligation of ensuring, by appropriate legislative and administrative provisions, that all workers in the Community are afforded the full protection provided for by the directive. That State guarantee must cover all cases where effective protection is not ensured by other means, for whatever reason, and, in particular, in cases where the workers in question are not union members, where the sector in question is not covered by a collective agreement or where such an agreement does not fully guarantee the principle of equal pay (Commission v Denmark, cited above, paragraph 8).
52 Admittedly, the Court has already held that the categorical affirmation, in Germany's Basic Law, of the equality of men and women before the law as well as the express exclusion of all discrimination on grounds of sex and the guarantee of equal access to employment in the public service for all German nationals, in terms intended to be directly applicable, constitute, in conjunction with the existing system of judicial remedies, an adequate guarantee of the implementation, in the field of public administration, of the principle of equal treatment laid down in Directive 76/207. The Court took the view that the object of Directive 76/207 had already been achieved in Germany as regards employment in the public service and access for all German nationals to the independent professions at the time when the directive entered into force, so that no further legislative provisions were required for its implementation (see the judgment in Commission v Germany, cited above, paragraphs 18 and 19).
54 Even if the provisions of the Greek Constitution are directly applicable, the relevant special Greek rules do not satisfy the requirements laid down by the case-law of the Court according to which the principles of legal certainty and the protection of individuals require an unequivocal wording which would give the persons concerned a clear and precise understanding of their rights and obligations and would enable the courts to ensure that those rights and obligations are observed (see Commission v Denmark, cited above, paragraph 10).