C-118/92
ECLI:EU:C:1994:99
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OPINION OF MR JACOBS — CASE C-118/92
OPINION OF ADVOCATE GENERAL JACOBS delivered on 15 March 1994 *
My Lords, contribution on their affiliates. The obliga- tion to pay a contribution applies to all per- sons affiliated to a guild irrespective of nationality. Articles 5 and 6 provided, prior to amendment by a law of 13 July 1993, 2 that the right to vote and the right to stand as a candidate in elections for membership of 1. In this case, the Commission seeks a dec- a guild were restricted to persons who held laration that, by excluding workers who are Luxembourg nationality. nationals of other Member States from the right to vote and the right to stand as a can- didate in elections for membership of occu- pational guilds, Luxembourg has failed to fulfil its obligations under Article 48(2) of the Treaty and Article 8(1) of Council Regu- lation (EEC) N o 1612/68 on freedom of movement for workers within the Commu- 3. In its application, the Commission nity. 1 claimed that the exclusion of workers from other Member States from the right to vote and the right to stand as a candidate for membership of the guild to which they were affiliated ran counter to the principle of the free movement of workers. In particular, the Commission claimed that it infringed the 2. By a Law of 4 April 1924 ('the Law'), prohibition of discrimination on grounds of which has since been amended a number of nationality laid down in Article 48(2) of the times, the Grand Duchy provided for the Treaty and also Article 8(1) of Regulation establishment of occupational guilds on the N o 1612/68, as amended, which states as fol- basis of elections. The function of occupa- lows: tional guilds is to defend and to represent the interests of the persons affiliated to them. Any person, irrespective of nationality, who exercises within the territory of the Grand Duchy an occupation which falls within the jurisdiction of a guild is automatically and compulsorily affiliated to that guild. Under Article 3 of the Law, as amended, the guilds may, in order to cover their expenses, levy a 'A worker who is a national of a Member State and who is employed in the territory of
* Original language: English. 1 — OJ, English Special Edition 1968 (II), p. 475. Amended by 2 — Mémorial (Journal Officiel du Grand-Duché de Luxem- Council Regulation (EEC) No 312/76, OJ 1976 L 39, p. 2. bourg) of 13 July 1993, No A 50, p. 999.
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COMMISSION v LUXEMBOURG
another Member State shall enjoy equality of right to stand as a candidate in elections for treatment as regards membership of trade membership of an occupational guild. unions and the exercise of rights attaching thereto, including the right to vote and to be eligible for the administration or manage- ment posts of a trade union; he may be excluded from taking part in the manage- ment of bodies governed by public law and 5. In the defence lodged by the Government from holding an office governed by public of Luxembourg in the present proceedings, law. Furthermore, he shall have the right of the Government did not contest the viol- eligibility for workers' representative bodies ation. It asked instead for a stay of proceed- in the undertaking. The provisions of this ings. It stated that an amending law seeking Article shall not affect laws or regulations in to remove nationality as a requirement for certain Member States which grant more the right to vote and the right to stand as a extensive rights to workers coming from the candidate in elections for membership of an other Member States.' occupational guild was under preparation and that a declaration by the Court to the effect that Luxembourg has failed to fulfil its obligations was unnecessary and would be counterproductive.
6. The Government of Luxembourg did not submit a rejoinder. After the close of the written proceedings, by a letter dated 23 4. The Law was examined by the Court in July 1993, it sent to the Court the text of the the ASTI case, 3 to which I refer for further Law of 13 July 1993 amending the Law. It details of its provisions. That case concerned notified the Law of 13 July 1993 to the the chamber of private employees, which is Commission by a letter of the same day. It one of the guilds established by the Law. In claims that, under the Law as amended by ASTI, the Court held that Article 8(1) of the Law of 13 July 1993, Luxembourg Regulation N o 1612/68 precludes national nationality is no longer a requirement which legislation refusing foreign workers the right a worker affiliated to an occupational guild, to vote in elections for members of an occu- other than the guild for civil and public ser- pational guild to which they are compulso- vants, must fulfil in order to have the right to rily affiliated, to which they must contribute, vote and the right to stand as a candidate in which is responsible for defending the inter- elections for membership of that guild. ests of affiliated workers and which performs a consultative function in the legislative field. The judgment of the Court in ASTI con- cerned only the right to vote and not the
7. It is clear, however, that the Law of 13 3 — Case C-213/90 [1991] ECR 1-3507. July 1993, which was adopted only after the
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OPINION OF MR JACOBS — CASE C-118/92
close of the written procedure, cannot be 8. The Commission notified its reasoned taken into account for the purposes of the opinion to the Government of Luxembourg present proceedings. In proceedings under on 23 October 1990. It invited the Grand Article 169 of the Treaty, the material date is Duchy to take the necessary measures within the date of expiry of the period laid down by a month from notification but no such mea- the Commission in its reasoned opinion for sures were taken. Even if it were accepted the Member State concerned to comply with therefore that the Law of 13 July 1993 com- that opinion. Legislative developments plies with the Commission's reasoned opin- which occur after the end of that period can- ion, that would not affect the outcome of the not be taken into account. The Court has present proceedings. Thus it is not necessary consistently held that the subject-matter of to examine that Law, or any subsequent leg- an action brought under Article 169 of the islative developments to which the Govern- Treaty is defined by the Commission's rea- ment has referred. soned opinion and that, even when the default has been remedied after the time- 9. It is clear in my view from the terms of limit prescribed by the second paragraph of Article 8(1) of Regulation No 1612/68 and that article has expired, there is still an inter- from the judgment in ASTI both that the est in pursuing the action in order to estab- legislation was not at the material time in lish the basis of liability which a Member conformity with Community law and that it State may incur as a result of its default is sufficient to refer to Article 8(1) of the reg- towards other Member States, the Commu- ulation and unnecessary to refer to Article 48 nity or private parties.4 of the Treaty.
Conclusion
10. Accordingly, I am of the opinion that the Court should:
1. declare that, by maintaining in force measures which exclude workers who are nationals of other Member States from the right to vote and the right to stand as a candidate in elections for membership of occupational guilds, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 8(1) of Council Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community;
2. order the Grand Duchy of Luxembourg to pay the costs.
4 — Sec e.g. Case 154/85 Commission v Italy [1987] ECR 2717, paragraph 6 of the judgment; Case C-361/88 Commission v Germany [1991] ECR 1-2567, paragraph 31.
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