Court of Justice of the European Communities (including Court of First Instance Decisions)

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Actions against Member States for failure to fulfil obligations ° Consideration of the merits by the Court ° Situation to be taken into account ° Situation on the expiry of the period laid down in the reasoned opinion
(EEC Treaty, Art. 169)

In Case C-118/92,
Commission of the European Communities, represented by Marie Wolfcarius, a member of its Legal Service, and Teofilos Margellos, a national civil servant seconded to the Commission' s Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Georgios Kremlis, of its Legal Service, Wagner Centre, Kirchberg,
applicant,
v
Grand Duchy of Luxembourg, represented by Jean Zahlen, Governmental Adviser in the Ministry of Employment, acting as Agent, with an address for service in Luxembourg at the Ministry of Employment, 26 Rue Zithe,
defendant,
APPLICATION for a declaration that, by maintaining in force legislation which denies workers who are nationals of other Member States and are employed in Luxembourg the right to vote and to stand as candidates in elections organized in the Luxembourg occupational guilds, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 48(2) of the EEC Treaty and Article 8(1) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475),
THE COURT,
composed of: G.F. Mancini, (President of Chambers), acting as President, J.C. Moitinho de Almeida and D.A.O. Edward (Presidents of Chambers), R. Joliet, F.A. Schockweiler, G.C. Rodríguez Iglesias (Rapporteur), F. Grévisse, M. Zuleeg and J.L. Murray, Judges,
Advocate General: F.G. Jacobs,
Registrar: R. Grass,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 15 March 1994,
after hearing the Opinion of the Advocate General at the sitting on 15 March 1994,
gives the following
Judgment

1 By application lodged at the Court Registry on 13 April 1992, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by maintaining in force legislation which denies workers who are nationals of other Member States and are employed in Luxembourg the right to vote and to stand as candidates for membership in elections organized by the Luxembourg occupational guilds, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 48(2) of the EEC Treaty and Article 8(1) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475).
2 The Luxembourg Law of 4 April 1924, as it applied when these proceedings were initiated, provides for the creation of occupational guilds with the specific task of protecting the interests of their members. All workers employed in the Grand Duchy of Luxembourg, irrespective of nationality, are compulsorily affiliated to such guilds. The members and alternates of each guild are appointed by election. Only persons possessing Luxembourg nationality are entitled to vote or stand as candidates for membership in such elections.
3 In accordance with the procedure laid down in Article 169 of the Treaty the Commission, by letter of 27 November 1989, gave to the Luxembourg Government formal notice on 27 November 1989 to submit its observations on the compatibility with Community law of the Law of 4 April 1924 which denies the right to vote and stand for election in occupational guilds to nationals of other Member States employed in Luxembourg.
4 Since it had received no reply from the Luxembourg authorities, the Commission, as on 23 October 1990, drew up and notified a reasoned opinion, as provided for in Article 169 of the Treaty, requesting the Grand Duchy of Luxembourg to take the measures necessary in order to comply with the opinion within one month from its notification. In the absence of a reply to that reasoned opinion, the Commission brought these proceedings for a declaration that Luxembourg had failed to fulfil its obligations under the Treaty.
5 The Commission considers that the denial to workers who are nationals of other Member States of the right to vote and to stand as candidates in elections for membership of occupational guilds is contrary to the prohibition of discrimination on grounds of nationality. In the field of trade union rights that principle means in particular that all workers, be they nationals of the host State or of other Member States, may participate in elections organized by bodies such as the Luxembourg occupational guilds which, whilst not being trade-union organizations in the strict sense, nevertheless perform similar functions as regards the defence and representation of workers' interests. On that point the Commission refers to the judgment in Case C-213/90 ASTI [1991] ECR I-3507 in which, also, the Law of 4 April 1924 was called in question.
6 The Luxembourg Government waived its right to submit pleadings on the substance of the case and at no time contested the failure to fulfil obligations. It nevertheless pointed out that a reform of the legislation on occupational guilds along the lines indicated by the Commission was in progress.
7 It is not in dispute that when the period laid down in the reasoned opinion expired the Luxembourg legislation on occupational guilds did not comply with the requirements of Community law.
8 That being so, a declaration must be granted in the terms sought by the Commission.

Costs
9 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the defendant has been unsuccessful, it must be ordered to pay the costs.

On those grounds,
THE COURT
hereby:
1. Declares that, by maintaining in force legislation which denies workers who are nationals of other Member States and are employed in the Grand Duchy of Luxembourg the right to vote and to stand as candidates for membership in elections organized by Luxembourg occupational guilds, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 48(2) of the EEC Treaty and Article 8(1) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community;
2. Orders the Grand Duchy of Luxembourg to pay the costs.