C-58/81
ECLI:EU:C:1982:215
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J U D G M E N T OF T H E C O U R T 9 JUNE 1982'
Commission of the European Communities v Grand Duchy of Luxembourg
(Failure of a State to fulfil its obligations — Equal pay)
Case 58/81
Member States — Obligations — Implementation of directives — Failure to comply — Justification — Not possible (EEC Treaty, Art. 169)
A Member State may not plead order to justify a failure to comply with provisions, practices or circumstances obligations resulting from Community existing in its internal legal system in directives.
In Case 58/81
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Jean Amphoux, acting as Agent, with an address for service in Luxembourg at the office of Oreste Montalto, a member of its Legal Department, Jean Monnet Building, Kirchberg, applicant, v
GRAND DUCHY OF LUXEMBOURG, represented by its Agent, Pierre Neyens, Principal Private Secretary to the Minister for the Civil Service, assisted by Paul Béghin, of the Luxembourg Bar, defendant,
APPLICATION for a declaration that, by not adopting within the period prescribed in Article 8 (1) of Council Directive 75/117/EEC of 10 February I — Language of the Case: French.
JUDGMENT OF 9. 6. 1982 — CASE 58/81
1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women the measures necessary in order to eliminate discrimination in the conditions for the grant of household allowances to civil servants, the Grand Duchy of Luxembourg has failed to fulfil its obligations under the EEC Treaty,
T H E COURT
composed of: J. Menens de Wilmars, President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges,
Advocate General : P. VerLoren van Themaat Registrar: P. Heim
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of the be taken to mean, by virtue of the procedure and the submissions and second paragraph of Article 119, the arguments of the parties may be ordinary basic or minimum wage or summarized as follows: salary and any other consideration, whether in cash or in kind, which the worker receives from his employer, directly or indirectly, in respect of his I — Facts and written procedure employment.
Anicie 119 of the Treaty provides that: In order to give effect to the principle of "Each Member State shall during the equal pay, the Council adopted, pursuant first suge ensure and subsequently to Article 100 of the Treaty, Directive maintain the application of the principle 75/117/EEC of 10 February 1975 on the that men and women should receive approximation of the laws of the equal pay for equal work." "Pay" must Member Sutes (Official Journal L 45,
COMMISSION v LUXEMBOURG
19. 2. 1975, p. 19). That directive was expenses or whose husband notified to the Member Sutes on 12 receives an income lower than February 1975. Article 3 of the directive the minimum social wage; provides that Member States are to "abolish all discrimination between men and women arising from laws, regu- (b) a widowed civil servant of either lations or administrative provisions which sex; is contrary to the principle of equal pay".
Pursuant to Article 4 of the directive (c) a civil servant of either sex who Member States are to "take the is legally separated or divorced; necessary measures to ensure that provisions appearing in collective agree- ments, wage scales, wage agreements or (d) an unmarried civil servant of individual contracts of employment either sex: which are contrary to the principle of (1) who has or has had several equal pay shall be, or may be declared, dependent children . . . null and void or may be amended". (2) who has the responsibilities of a head of household with Article 8 of the directive placed Member respect to a relative by blood States under an obligation to put into or marriage . . . force the laws, regulations and adminis- trative provisions necessary in order to comply with it within one year of its 3. The head of household allowance notification and to inform the Com- shall be equal to 6% of the civil mission thereof immediately. servant's basic remuneration but shall not be less than 18 index points or more than 22 points." In the Grand Duchy of Luxembourg, the head of household allowance is granted to State civil servants pursuant to the Law of 22 June 1963, as amended, laying Municipal officials and employees are down the scheme for remuneration of also affected since by virtue of the :ivil servants (Memorial A, 1963, p. 563). provisions of the Law of 28 July 1954 \rticle 9 of that law is worded as they receive the same household Follows : allowances, child allowances and other allowances of every kind as State officials and employees. '1. A civil servant having the status of head of household shall be granted a head of household allowance. The Commission has noted similar provisions in collective employment 2. The followong shall be regarded as agreements, for example those of in- heads of household: surance and bank clerks. Such collective agreements are given the force of law by the Grand Ducal regulations. (a) a male married civil servant and also a female married civil servant whose husband is subject Being of the opinion that the Grand to an infirmity or serious illness Duchy of Luxembourg had failed to rendering him incapable of fulfil its obligations under Article 119 of providing for the household the Treaty and Directive 75/117/EEC,
JUDGMENT OF 9. 6. 1982 — CASE 58/81
the Commission decided to initiate the The written procedure followed the procedure provided for in Article 169 of normal course. the Treaty against the Grand Duchy of Luxembourg. Accordingly, by letter of 3 April 1979, it gave the Luxembourg Upon hearing the views of the Judge- Government an opportunity to submit its Rapporteur and the views of the observations regarding the alleged failure Advocate General, the Court decided to to fulfil its obligations within a period of open the oral procedure without any 60 days from the receipt of the letter. preparatory inquiry. The Luxembourg Government submitted its observations to the Commission by letter of 6 June 1979. The Luxembourg Government stated that a draft law was II — Conclusions of the parties being prepared in order to amend the Law of 22 June 1963 laying down the scheme for the remuneration of civil The Commission claims that the Court servants. The Government had also should: informed both sides of industry that in the future it would refuse to assign the force of law to collective agree- Declare that by not adopting within the ments which maintained discriminatory period prescribed in Article 8 (1) of conditions for the grant of household Directive 75/117/EEC of 10 February allowances and accommodation allow- 1975 on the approximation of the laws ances. Negotiations were taking place, it of the Member States relating to was stated. application of the principle of equal pay for men and women the measures Noting that, although certain progress necessary in order to eliminate discrimi- had been evident in the area of collective nation in the conditions for the grant of agreements, the legislative amendment head of household allowances to civil referred to in connection with the servants, the Grand Duchy of Luxem- conditions for the grant of a head of bourg has failed to fulfil its obligations household allowance to civil servants had under Article 119 of the EEC Treaty and not entered into force, on 8 May 1980 the provisions of the directive in the Commission issued a reasoned question; opinion pursuant to the first paragraph of Article 169 of the Treaty. That reasoned opinion was notified to the Order the Grand Duchy of Luxembourg Grand Duchy of Luxembourg by letter to pay the costs. of 19 May 1980. The Luxembourg Government replied by letter of 13 September 1980, indicating what progress had been made with the draft The Grand Duchy of Luxembourg has not law. The Luxembourg Government also formulated any explicit conclusions. informed the Commission that both sides of industry had formally undertaken to eliminate the discrimination referred to above on renewal of those agreements, I l l — Submissions and argu- which it was envisaged would take place ments of the parties by 1 January 1981. The present application, dated 12 March, was lodged at the Court Registry In its application, the Commission claims on 16 March 1981. that the provisions of Article 119 of
COMMISSION v LUXEMBOURG
the EEC Treaty and of Directive men and women also applies to workers 75/117/EEC apply to the conditions for in the public sector. The remuneration of the grant of a head of household State civil servants is fixed by legislation. allowance, as provided for by the The Luxembourg Government describes national provisions in question, to staff in detail the stages of the draft law, in the public sector. The fact that such which was removed from the agenda of staff are employed in a public sector the Chamber of Deputies on 4 July 1980 cannot in any way call in question the in view of difficulties of a legislative applicability to them of Anicie 119 and nature regarding determination of the of the above-mentioned directive. There head of household allowance in the case is no doubt that the head of household of half-time employment. Various allowance, as provided for in Article 9 of formulas have now been adopted which the Law of 12 June 1963, satisfies all are likely finally to settle the problem of the conditions for classification as a the family allowance in the case of half- component of remuneration within the time work. Moreover, the Government is meaning of Article 119. It is in fact an now considering ways in which to reduce advantage paid direct, in cash, by the the cost of the envisaged measure, which employer to the staff concerned by involves expenditure estimated by the tax reason of their employment. inspectorate as 64 million Luxembourg francs, a considerable and, in view of the budgetary situation, onerous expense. At its meeting of 29 May 1981, the The conditions for the grant of the head Government in Council decided to of household allowance, in their present instruct a working party to work out a form, constitute discrimination based on solution. sex against married women.
The Commission states in reply that those The Luxembourg Government informs reasons cannot justify the continued the Court that it intends to comply application of provisions contrary to the strictly with Article 119 of the EEC principle of equal pay. As the Court has Treaty and with Directive 75/117/EEC. had occasion to point out on numerous occasions in its decisions, Member States may not justify a failure to comply with obligations and time-limits resulting from The Government has indicated that in provisions of Community law by relying the private sector the collective on internal difficulties or provisions of agreements concluded recently have their own national laws even where those taken account of the directive. The laws are constitutional in character. agreement relating to bank clerks and that relating to insurance clerks, which were brought into force with effect from 1 July 1981, provide that the household The Luxembourg Government states that allowance is to be granted to male and the text of the draft law now being female employes without distinction. prepared has already been approved by the staff representatives of the civil service and that it would probablv be discussed by the Government in Council The Luxembourg Government's determi- at one of its meetings in September, so nation to ensure effective application of that the legislative procedure may in any the principle of equal pay as between case be commenced during 1981.
JUDGMENT OF 9. 6. 1982 — CASE 58/81
IV — Oral procedure Amphoux for the Commission and by P. Béghin for the Luxembourg Government.
At the sitting on 23 March 1982 oral The Advocate General delivered his argument was presented by Jean opinion at the silting on 18 May 1982.
Decision
1 By application lodged at the Court Registry on 16 March 1981, the Commission of the European Communities brought an action, pursuant to Article 169 of the EEC Treaty, for a declaration that by failing to adopt within the period prescribed in Article 8 (1) of Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (Official Journal 1975, L 45, p. 19) the measures necessary in order to eliminate discrimination in the conditions for the grant of head of household allowances to civil servants, the Grand Duchy of Luxembourg had failed to fulfil its obligations under the EEC Treaty.
Pursuant to Article 8 of the directive, Member States were to put into force the measures necessary in order to comply with its requirements within one year of its notification, a period which expired on 12 February 1976.
The Grand Duchy of Luxembourg has not disputed the failure to fulfil its obligations with which it is charged but has confined itself to stating that the delay in adopting the measures necessary to comply with the directive in question resulted on the one hand from the need to enact legislation and, on the other hand, from the fact that implementation of the directive necessitated an assessment of the budgetary consequences. Moreover, it is necessary to make changes to the conditions applicable to part-time working, which involves discussions with the civil service representatives.
COMMISSION v LUXEMBOURG
4 According to the well-established case-law of the Court, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with obligations resulting· from Community directives.
5 It must therefore be declared that by not adopting within the period prescribed in Article 8 (1) of Directive 75/117/EEC of 10 February 1975 the measures necessary in order to eliminate discrimination in the conditions for the grant of head of household allowances to civil servants, the Grand Duchy of Luxembourg has failed to fulfil its obligations under the EEC Treaty.
Costs
6 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs.
7 Since the Grand Duchy of Luxembourg has failed in its submissions, it must be ordered to pay the costs.
On those grounds,
THE COURT
hereby:
1. Declares that by not adopting within the period prescribed in Article 8 (1) of Directive 75/117/EEC of 10 February 1975, the measures necessary to eliminate discrimination in the conditions for the grant of head of household allowances to civil servants, the Grand Duchy of Luxembourg has failed to fulfil one of its obligations under the EEC Treaty;
OPINION OF MR VERLOREN VAN THEMAAT — CASE 58/81
2. Orders the Grand Duchy of Luxembourg to pay the costs.
Mertens de Wilmars Bosco Touffait Due Pescatore Mackenzie Stuart O'Keeffe Koopmans Everling Chloros Grévisse
Delivered in open court in Luxembourg on 9 June 1982.
J. A. Pompe J. Menens de Wilmars Deputy Registrar President
O P I N I O N O F MR ADVOCATE GENERAL VERLOREN VAN T H E M A A T DELIVERED O N 18 MAY 1982 '
Mr President, within the period prescribed by Article Members of the Court, 8 (1) of the directive the measures needed to abolish discrimination in the conditions governing the entitlement of 1. Subject-matter of the action officials to the head of household allowance. The Commission requests the Court to declare that the Grand Duchy of Luxem- bourg has failed to fulfil its obligations 2. Relationship to other actions under Artici: 9 of the EEC Treaty and Directive 7: 7/EEC of 10 February These proceedings constitute the first 1975 on the approximation of the laws action under Article 169 of the EEC of the Member States relating to the Treaty concerning the principle of equal application of the principle of equal pay pay which the Commission has brought for men and women, by not adopting before the Court. The Commission has
I — Translated írom the Dutch.