C-430/98

OPINION OF MR LÉGER — CASE C-430/98

OPINION OF ADVOCATE GENERAL LÉGER delivered on 10 June 1999 *

1. In this action the Commission of the management and labour introduce the European Communities seeks a declaration required provisions by way of agreement, that, by failing to adopt and to commu- the Member States being obliged to take all nicate to it, within the prescribed period, necessary steps enabling them at all times the laws, regulations and administrative to guarantee the results to be achieved provisions necessary to comply with Coun- under the directive. The Member States cil Directive 94/45/EC of 22 September were required immediately to inform the 1994 on the establishment of a European Commission of the measures adopted. Works Council or a procedure in Commu- nity-scale undertakings and Community- scale groups of undertakings for the pur- poses of informing and consulting employ- ees, 1 alternatively by failing to ensure the introduction by management and labour of 3. Having observed that the time allowed the required provisions by way of agree- had expired without its being informed of ment, and thus by failing to take and to any transposing measures adopted by the communicate to the Commission the mea- Grand Duchy of Luxembourg, the Com- sures required to guarantee the results to be mission initiated the procedure for a achieved under that directive, the Grand declaration for failure to fulfil obligations Duchy of Luxembourg has failed to fulfil provided for by Article 169 of the EC its obligations under the EC Treaty. The Treaty (now Article 226 EC). Commission also seeks an order requiring the Grand Duchy of Luxembourg to pay the costs.

6. On 22 April 1998, taking the view that no measures had been adopted to imple- 9. It is thus apparent that the Luxembourg ment Directive 94/45 or, at least, that it had Government does not dispute the fact that not been informed of any such measures, Directive 94/45 was not transposed within the Commission sent the Luxembourg the prescribed period. It has still not been Government a reasoned opinion stating its transposed today, as no definitive law, view that Luxembourg had failed to fulfil regulations or administrative provisions its obligations. have been adopted to transpose it into domestic law. It should also be observed that, as the Luxembourg Government acknowledges, not all the Luxembourg undertakings subject to Directive 94/45 are covered by agreements designed to 7. Having received no information about implement the provisions necessary for its the state of progress in transposing Direc- transposition and that, as the Commission tive 94/45, the Commission brought the emphasises, where such agreements do present action. exist, it has not been shown that they have the binding force required for them to ensure such implementation. The Commis- sion's action for failure to comply with the obligations imposed by Directive 94/45 is therefore well founded. 8. In its defence, the Luxembourg Govern- ment does not dispute that it failed to transpose Directive 94/45 within the pre- scribed period. It states that it has adopted a draft law transposing the directive into Luxembourg law and has sent it to profes- sional bodies and to the Council of State 10. Under Article 69(2) of the Rules of for comment, and that it expects the draft Procedure, the unsuccessful party is to be to be voted on by the Chamber of Deputies ordered to pay the costs if they have been before the end of the first semester of the applied for in the successful party's plead- current year. The Luxembourg Government ings.

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