Opinion of the Advocate-General
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My Lords,
1. In this case, the Commission seeks a declaration that, by excluding 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, Luxembourg has failed to fulfil its obligations under Article 48(2) of the Treaty and Article 8(1) of Council Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community. (1)
2. By a Law of 4 April 1924 ("the Law"), which has since been amended a number of times, the Grand Duchy provided for the establishment of occupational guilds on the basis of elections. The function of occupational 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 contribution on their affiliates. The obligation to pay a contribution applies to all persons 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 a guild were restricted to persons who held Luxembourg nationality.
3. In its application, the Commission 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 prohibition of discrimination on grounds of nationality laid down in Article 48(2) of the Treaty and also Article 8(1) of Regulation No 1612/68, as amended, which states as follows:
"A worker who is a national of a Member State and who is employed in the territory of another Member State shall enjoy equality of treatment as regards membership of trade unions and the exercise of rights attaching thereto, including the right to vote and to be eligible for the administration or management posts of a trade union; he may be excluded from taking part in the management of bodies governed by public law and from holding an office governed by public law. Furthermore, he shall have the right of eligibility for workers' representative bodies in the undertaking. The provisions of this Article shall not affect laws or regulations in certain Member States which grant more extensive rights to workers coming from the other Member States."
4. The Law was examined by the Court in the ASTI case, (3) to which I refer for further details of its provisions. That case concerned the chamber of private employees, which is one of the guilds established by the Law. In ASTI, the Court held that Article 8(1) of Regulation No 1612/68 precludes national legislation refusing foreign workers the right to vote in elections for members of an occupational guild to which they are compulsorily affiliated, to which they must contribute, which is responsible for defending the interests of affiliated workers and which performs a consultative function in the legislative field. The judgment of the Court in ASTI concerned only the right to vote and not the right to stand as a candidate in elections for membership of an occupational guild.
5. In the defence lodged by the Government of Luxembourg in the present proceedings, the Government did not contest the violation. It asked instead for a stay of proceedings. It stated that an amending law seeking to remove nationality as a requirement for the right to vote and the right to stand as a candidate in elections for membership of an 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 July 1993, it sent to the Court the text of the Law of 13 July 1993 amending the Law. It notified the Law of 13 July 1993 to the Commission by a letter of the same day. It claims that, under the Law as amended by the Law of 13 July 1993, Luxembourg nationality is no longer a requirement which a worker affiliated to an occupational guild, other than the guild for civil and public servants, must fulfil in order to have the right to vote and the right to stand as a candidate in elections for membership of that guild.
7. It is clear, however, that the Law of 13 July 1993, which was adopted only after the close of the written procedure, cannot be taken into account for the purposes of the present proceedings. In proceedings under Article 169 of the Treaty, the material date is the date of expiry of the period laid down by the Commission in its reasoned opinion for the Member State concerned to comply with that opinion. Legislative developments which occur after the end of that period cannot be taken into account. The Court has consistently held that the subject-matter of an action brought under Article 169 of the Treaty is defined by the Commission' s reasoned opinion and that, even when the default has been remedied after the time-limit prescribed by the second paragraph of that article has expired, there is still an interest in pursuing the action in order to establish the basis of liability which a Member State may incur as a result of its default towards other Member States, the Community or private parties. (4)
8. The Commission notified its reasoned opinion to the Government of Luxembourg on 23 October 1990. It invited the Grand Duchy to take the necessary measures within a month from notification but no such measures were taken. Even if it were accepted therefore that the Law of 13 July 1993 complies with the Commission' s reasoned opinion, that would not affect the outcome of the present proceedings. Thus it is not necessary to examine that Law, or any subsequent legislative developments to which the Government has referred.
9. It is clear in my view from the terms of Article 8(1) of Regulation No 1612/68 and from the judgment in ASTI both that the legislation was not at the material time in conformity with Community law and that it is sufficient to refer to Article 8(1) of the regulation and unnecessary to refer to Article 48 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.
(*) Original language: English.
(1) - OJ, English Special Edition 1968 (II), p. 475. Amended by Council Regulation (EEC) No 312/76, OJ 1976 L 39, p. 2.
(2) - Mémorial (Journal Officiel du Grand-Duché de Luxembourg) of 13 July 1993, No A 50, p. 999.
(3) - Case C-213/90 [1991] ECR I-3507.
(4) - See 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 I-2567, paragraph 31.
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