OPINION OF ADVOCATE GENERAL

TIZZANO

delivered on 18 January 2005 (1)

Case C-519/03

Commission of the European Communities

v

Grand Duchy of Luxembourg

(Failure of a Member State to fulfil obligations – Directive 96/34/EC – Parental leave – Maternity leave – Incorrect transposition)

1.     In an action brought on 12 December 2003, the Commission of the European Communities (‘the Commission’) requested the Court of Justice to establish, pursuant to Article 226 EC, whether the Grand Duchy of Luxembourg (‘Luxembourg’) had correctly transposed Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC (‘Directive 96/34’, or simply ‘the directive’) into national law. (2)

2.     The Commission’s complaint is that the Luxembourg legislation which transposed the directive substituted maternity leave for parental leave where there was an overlap between the two, and granted parental leave only to parents of children born seven months after the time-limit for transposition of the directive had expired.

I –  Legal background

A –    Community legislation

3.     By means of Directive 96/34, the Community legislature implemented the framework agreement on parental leave concluded on 14 December 1995 between the general cross-industry organisations (UNICE, CEEP and the ETUC (‘the framework agreement’). (3) Under Article 2 of the directive, the Member States were obliged to adopt the laws, regulations and administrative provisions necessary to transpose the directive, and thus the agreement annexed to it, by 3 June 1998 at the latest.

4.     For the purposes of this case, particular emphasis needs to be given to point 9 of the general considerations in the framework agreement, according to which parental leave is ‘distinct from maternity leave’, and in particular to Clause 2(1), which states ‘[t]his agreement grants, ... , men and women workers an individual right to parental leave on the grounds of the birth or adoption of a child to enable them to take care of that child, for at least three months, until a given age up to 8 years to be defined by Member States and/or management and labour’.

B –    National legislation

5.     By means of the Law of 12 February 1999 introducing parental leave and leave for family reasons (‘the Law of 12 February 1999’), (4) Luxembourg’s intention was to implement Directive 96/34.

6.     It follows from Articles 2 and 8 of that law that all parents may take six months’ parental leave (which may be extended to 12 months in the case of part-time leave), in the course of which they will receive a monthly payment of EUR 272.68 (reduced to half in the case of part-time leave).

7.     Article 7(2) of the same law lays down that where a pregnancy (or the adoption of a child) giving entitlement to maternity (or adoption) leave occurs during the period of parental leave, the latter comes to an end and is replaced by the former.

8.     The fifth paragraph of Article 19 of the law lays down that only parents of children born after 31 December 1998, or in respect of whom adoption proceedings were initiated with the competent tribunal after that date, may avail themselves of the rules on parental leave.

9.     Although it is not directly the subject of a challenge by the Commission, for reasons which we will see, reference should also be made to Article 3(4) of the law in question, which lays down that the first parental leave must be requested by one of the two parents, on pain of losing that right, on the expiry of the maternity (or adoption) leave. Under Article 3(5), the second parental leave may be taken by the other parent until the child has reached the age of five years.

10.   Finally, it should be pointed out that the Law of 12 February 1999 was amended by the Law of 21 November 2002, (5) which, in relation to our present purposes, introduced the sixth paragraph of Article 10, which states:

‘A definitive rejection by [the competent authority] of an application for the allowance provided for [in respect of parental leave] shall be without prejudice to the possible grant of parental leave by the employer under the conditions laid down by [Directive 96/34]’. (6)

11.   In its written submission in its defence, Luxembourg has also referred to a draft law of 2003 whose purpose is to introduce further changes to the relevant legislation. I do not consider that I need to make reference to those changes, because there is no doubt that they are irrelevant to this case ratione temporis.

II –  Facts and procedure

12.   In a letter of formal notice of 16 May 2001, the Commission informed the Luxembourg Government that, in its opinion, Article 7(2) and the fifth paragraph of Article 19 of the Law of 12 February 1999 were not in conformity with Directive 96/34.

13.   In a letter of 26 July 2001, Luxembourg disputed the Commission’s assertions.

14.   In a supplementary letter of formal notice of 23 October 2001, the Commission informed Luxembourg that it also regarded Article 3(6) of the Law of 12 February 1999 as contrary to Community law; under that provision, if both parents submit an application for parental leave, priority must be given to the mother.

15.   Luxembourg replied, on 8 January 2002, that that provision was about to be amended by establishing an order of priority between the two parents on the basis of the alphabetical order of their respective surnames. That amendment was introduced by the Law of 21 November 2002.

16.   On 15 November 2002, the Commission delivered a reasoned opinion to Luxembourg, pursuant to the first paragraph of Article 226 EC, in which it stated that, by adopting Articles 3(6), 7(2) and 19 of the Law of 12 February 1999, it had failed to fulfil its obligations under Community law, in particular as regards (i) the criterion for giving priority for parental leave to one of the parents where there is a simultaneous application by both; (ii) the substitution of maternity leave for parental leave where there is overlap between the two; and (iii) the granting of parental leave only to parents of children born seven months after the time-limit fixed for the transposition of the directive.

17.   The reasoned opinion called upon Luxembourg to make its legislation compliant with Community law within two months of notification, that is by 15 January 2003.

18.   In reply to the reasoned opinion, Luxembourg sent the Commission a letter on 19 May 2003 in which it informed the Commission of the amendments made to the 1999 Law in issue by the Law of 21 November 2002. Although it was sent before the date on which the application initiating the present proceedings was lodged (12 December 2003), because of a series of mistakes within the Commission it had not reached the latter’s legal service by that date.

19.   However, having been informed – albeit only partially – of the amendment to Article 3(6) of the Law of 12 February 1999, the Commission, in its application, withdrew its complaint relating to parental leave being given to the mother as a priority where there are simultaneous applications, but stood by its two other complaints.

20.   Moreover, in order to illustrate its arguments in support of those complaints, the Commission asserted that the Law of 12 February 1999 also constituted a breach of the directive by reason of the provision under which one of the parents is obliged to take parental leave on the expiry of the maternity (or adoption) leave (Article 3(4)). The Commission did however expressly exclude that question from the subject-matter of the application because it was not raised in the pre-litigation procedure.

21.   Once the usual exchange of written pleadings had been completed, the parties presented oral argument at the hearing on 24 November 2004.

III –  Legal analysis

 Admissibility

22.   Luxembourg first of all objects that the application is inadmissible, claiming that it is devoid of purpose because any failure to comply has been remedied by the amendments to the national provisions which had been criticised, introduced by the Law of 21 November 2002. Although those amendments were communicated to the Commission belatedly, they were nevertheless introduced within the time-limit (15 January 2003) imposed by the reasoned opinion for Luxembourg to comply with the directive.

23.   In any case, the Luxembourg Government goes on to submit, at the time of its application, the Commission no longer had any reason to bring the matter before the Court because, although they had not been notified at the right time, the supervening legislative amendments which Luxembourg had made nevertheless put an end to the failure to fulfil its obligations in due time. Having mislaid the reply to the reasoned opinion, the Commission had, however, still seised the Court of the matter, even though at that stage its interest in bringing proceedings had objectively disappeared. The application was therefore also inadmissible on that ground.

24.   In its rejoinder, Luxembourg added, in support of its plea of inadmissibility, that the two months it was granted by the reasoned opinion did not constitute a reasonable period, as it was impossible in such a short period of time to make the amendments to the legislation requested by the Commission.

25.   However, it appears to me that those objections are rightly challenged by the Commission on the basis of the settled case-law of the Court.

26.   First of all, the Court has consistently held that ‘whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in the Member State at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes’. (7) In the present case, because it is clear that the new Luxembourg legislation, although it had been adopted, was not notified to the Commission in due time, the view must be taken that, for the latter, it was true that at the expiry of that period, ‘the situation in the Member State’ was not in accordance with the reasoned opinion.

27.   Moreover, the Court has also consistently held that the Commission’s interest in bringing proceedings under Article 226 EC subsists even when the breach which is challenged has been eliminated on a date which is subsequent to the time-limit laid down in the reasoned opinion (8) (and a fortiori, obviously, when the Commission takes the view that the breach has not been eliminated at all, as in the present case).

28.   It is true that in this case, with the delays and mistakes in the forwarding of Luxembourg’s reply to the reasoned opinion, the situation appears to be more complicated. However, as the Commission states, the Court has made clear that, for the purposes of the admissibility of an action for failure to fulfil obligations, the fact of not taking the reply to a reasoned opinion into consideration is irrelevant. (9) In Commission v Netherlands, we read that ‘even assuming that the contentious procedure was opened by a Commission application which took no account of any new matters of fact or law put forward by the Member State concerned in its reply to the reasoned opinion, that State’s right to a fair hearing has not been infringed. It is fully open to the State to raise those matters in the contentious procedure, to begin with in its first pleading in defence. It will be for the Court to examine their relevance for the outcome of the action for failure to fulfil obligations’. (10)

29.   It therefore seems to me that Luxembourg’s objections in the matter of admissibility cannot be upheld.

30.   Finally, in regard to Luxembourg’s remarks on the allegedly disproportionate character of the time-limit accorded to it in the reasoned opinion, I could simply observe that that plea was raised only at the time of the rejoinder and should not therefore be taken into consideration as it is out of time.

31.   However, on the substance of this matter, I should observe that the Treaty is silent on the point and two months is the time-limit that the Commission normally allows Member States in a reasoned opinion. (11) Even though it may appear insufficient per se, it should be remembered that ‘to give the Member State an opportunity ... of remedying the position before the matter is brought before the Court’ is the purpose of the pre-litigation procedure as a whole, and not of the reasoned opinion only. (12) It is well established that the latter is only the final act in a procedure which usually lasts long enough to allow the Member State to comply with the Commission’s demands.

32.   As far as the present case is concerned, it may be added that if Luxembourg was able to amend the legislation in dispute within the time-limit granted in the reasoned opinion, that time-limit was clearly less disproportionate than Luxembourg now claims. Whether the amendments introduced are truly such as to render this action devoid of purpose is the question the Court will have to answer when it gives judgment on the substance of the case.

33.   On the basis of the foregoing, I therefore propose that the Court declare the action to be admissible.

 The first plea in law

34.   In its first plea in law, the Commission claims that Article 7(2) of the Law of 12 February 1999, under which where pregnancy (or the adoption of a child) giving entitlement to maternity (or adoption) leave occurs during the period of parental leave, the latter comes to an end and is replaced by the former, does not comply with the directive.

35.   More particularly, that provision is, in the opinion of the Commission, contrary to the principle, endorsed at point 9 of the general considerations in the framework agreement annexed to the directive (see points 3 and 4 above), that parental leave is distinct from maternity leave.

36.   Under point 1 of Clause 2 of the agreement, the former is a right which applies to both working parents and allows one of the two to be absent from work for at least three months, until the child has reached a given age up to eight years, to be defined by Member States.

37.   Maternity leave on the other hand protects ‘a woman’s biological condition and the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment’. (13)

38.   Since the two types of leave correspond to requirements which do not coincide, the Commission adds, it is wrong for the Luxembourg legislation to lay down that the granting of maternity leave brings parental leave to an end. That is because a woman whose parental leave is interrupted by the beginning of a period of (antenatal) maternity leave as a result of a further pregnancy should be able subsequently to recoup the proportion of parental leave she has not taken.

39.   Luxembourg’s response is that the denial of the right to parental leave feared could occur only in extremely rare circumstances. In its view, Article 3(4) of the Law of 12 February 1999 obliges one of the parents to take parental leave immediately after maternity leave. Since in the overwhelming majority of cases it is the mother who does that, it would not be biologically possible for her parental leave to be interrupted by maternity leave deriving from a subsequent pregnancy. Even supposing that a further pregnancy occurred immediately after the birth, the antenatal maternity leave connected with that further pregnancy would begin after the period consisting of the sum of the postnatal maternity leave relating to the first pregnancy and the parental leave taken when the latter expired.

40.   Luxembourg admits that if, on the other hand, it was the father who requested parental leave on expiry of the maternity leave, it could not be excluded that, during the parental leave taken by the mother, in her turn, at a later time, a pregnancy might occur with ensuing maternity leave, which would put an end prematurely to the parental leave.

41.   However, by adopting the Law of 21 November 2002 before expiry of the time-limit granted to it in the reasoned opinion, Luxembourg claims to have remedied such an – albeit remote – possibility.

42.   That law, as we have seen, introduced into the previous legislation the sixth paragraph of Article 10, under which ‘[a] definitive rejection by [the competent authority] of an application for the allowance provided for [in respect of parental leave] shall be without prejudice to the possible grant of parental leave by the employer under the conditions laid down by [Directive 96/34]’.

43.   In that way, a mother whose parental leave comes to an end prematurely because a period of maternity leave supervenes would nevertheless be allowed subsequently to recover the missing period so as to obtain the minimum duration of three months which the directive lays down for parental leave.

44.   Luxembourg adds that, even before that change in the law, it also issued specific instructions to the competent authorities to ensure that a mother who found herself in the situation postulated by the Commission would receive a supplement to parental leave not taken, so as to obtain an overall duration equal not to the minimum of three months laid down by the directive, but to the six months fixed by Article 2 of the Law of 12 February 1999 (12 in the case of part-time leave). Further, Luxembourg would in such cases pay the allowance laid down by Article 8 of the abovementioned law even though that is not imposed by the directive.

45.   For my part, whilst acknowledging that the Luxembourg legislation on the matter in issue is very generous taken as a whole, I do not consider that I can share the arguments Luxembourg puts forward.

46.   Those arguments do not convince me, in the first place, as regards the complaints raised by the Commission concerning the compliance with Directive 96/34 of the legislation which existed before the amendments of 2002, and particularly Article 7(2) of the Law of 12 February 1999.

47.   As we have seen, that provision lays down that where a period of maternity leave resulting from a new pregnancy supervenes during the period of parental leave due in respect of a child already born, the latter leave comes to an end and is replaced by the former.

48.   That means, as Luxembourg itself acknowledges, that albeit only in the limited number of cases in which the article in question comes into play, when it is applied, a mother has a shorter period of parental leave than the six months normally laid down by the Luxembourg legislation which transposed the directive.

49.   As the Commission stated at the hearing, a Member State is certainly free, when transposing the directive, to grant a period of parental leave longer than the minimum of three months imposed by the directive. However, once it has decided to grant a longer period of leave, it must grant it on the same terms to all individuals covered by the directive and it is not therefore free, in the absence of objective justification, to treat those individuals differently in that regard.

50.   That conclusion appears to me to be dictated by the fact that the principle of non-discrimination forms an integral part of the general principles of law whose observance the Court ensures (14) and that such principles ‘are ... binding on Member States when they implement Community rules’. (15) The directive may therefore be described as correctly transposed only if the national legislature has used the latitude it is allowed by the directive whilst also observing the aforesaid principle.

51.   It follows that, in the absence of any objective justification (and that has not been produced), Luxembourg could not grant some mothers parental leave which, even though it is longer than three months, is shorter than the six months which it normally grants in such cases.

52.   The administrative instructions referred to previously (point 44) are certainly relevant to our purposes here, but they cannot in themselves constitute a deciding factor against the alleged discrimination, because, as the Court has stated on several occasions, ‘mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of a Member State’s obligations under the Treaty’. (16)

53.   Having said that, it is now necessary to establish whether Luxembourg subsequently made suitable amendments to the disputed legislation so as to put an end to the failure to fulfil its obligations within the time-limit allowed by the reasoned opinion (15 January 2003). That is in line with the reasoning used in the Commission v Netherlands judgment cited above, which entails the Court agreeing to take into consideration the measures adopted within the time-limit fixed by the reasoned opinion but notified belatedly.

54.   It is true that the Law of 21 November 2002 inserted, into the Law of 12 February 1999, a provision (the sixth paragraph of Article 10) which allows a mother whose parental leave finishes early, owing to supervening maternity leave, subsequently to have a further period of parental leave and thus to obtain the minimum duration imposed by the directive.

55.   However, even in those terms, the Luxembourg legislation is still not fully compliant with the directive and the principles of Community law because it can also bring about situations which are discriminatory as between the individuals concerned.

56.   Under the new legislation, all fathers and those mothers whose parental leave was not prematurely brought to an end by maternity leave resulting from a further pregnancy would have the benefit of six months’ parental leave and the relevant allowance. On the other hand, those mothers whose parental leave was prematurely interrupted by maternity leave owing to a further pregnancy would have only a period which was shorter and not entirely covered by the allowance. They would in fact have the right to recoup only that part of the parental leave not taken by which they were short of the three months minimum laid down by the directive, without receiving any allowance in so doing.

57.   Thus, even wishing to take account of the most recent legislation, I cannot but conclude that, in the light of the reflections on the principle of non-discrimination set out above (point 49 et seq.), the Luxembourg legislation does not transpose the directive correctly.

58.   Such a conclusion cannot be avoided by referring to the fact, as Luxembourg does, that it is highly improbable that supervening maternity leave will prematurely bring a period of parental leave to an end.

59.   It is certainly true that it is not possible to imagine many cases of this kind, and the more so when one considers that under Article 3(4) of the Law of 12 February 1999 one of the parents must take parental leave on the expiry of the maternity leave. If in fact, as happens more frequently, it is the mother who does that, the premature curtailment of her parental leave by reason of a supervening period of antenatal maternity leave due to a further pregnancy would occur only in the very unlikely event that that pregnancy commenced immediately after the previous birth.

60.   But apart from the fact that it is doubtful whether that provision is compatible with the directive and that it is not at issue in this case simply because it was not challenged at the pre-litigation stage (see above, point 20), I must point out that the above would have no effect on the existence of the breach alleged by the Commission, but only on its extent.

61.   As the Court has had occasion to make clear, the intensity of the effects of a failure to fulfil obligations is not relevant for the purposes of establishing that it took place: ‘[e]ven if it should be established that there was no damage, ... the failure to comply with an obligation imposed by a rule of Community law is sufficient to constitute the breach, and the fact that such a failure had no adverse effects is irrelevant’. (17)

62.   I therefore consider that I can conclude on this point that Article 7(2) of the Law of 12 February 1999 does not transpose the directive correctly and that the Law of 21 November 2002 has not remedied the situation. I therefore propose that the Court should uphold the first plea in law.

 The second plea in law

63.   In its second plea, the Commission maintains that the fifth paragraph of Article 19 of the Law of 12 February 1999, according to which parental leave is due only to parents of children born after 31 December 1998 (or in respect of whom adoption proceedings were initiated with the competent tribunal after that date), infringes Article 2(1) of the directive, which fixes the time-limit for transposition thereof at 3 June 1998.

64.   I should state immediately that the Commission’s complaint is not based so much on the fact that Luxembourg has chosen a date for the commencement of the right to parental leave which is different from the date laid down by the directive (31 December 1998 rather than 3 June 1998). The complaint relates principally to the criterion chosen for acquiring that right, namely the fact that Luxembourg grants parental leave only to the parents of children born after that date.

65.   The Commission points out that the directive requires that right to be granted to parents of all children of a given age (which the Member States were free to determine up to a maximum of eight, and which Luxembourg has fixed at five years), regardless of whether those children were born before or after the date laid down for transposition. Luxembourg should therefore grant parental leave also to all parents of children born before 3 June 1998 but who have not reached five years of age at the time the leave was applied for.

66.   Luxembourg's reply is, first, that the basis of the right to parental leave does not lie in the age of the child but in the fact of its birth, as is clear, in its view, from the English and German versions of Clause 2(1) of the framework agreement. (18)

67.   Moreover, continues Luxembourg, the Commission’s argument would involve the application of the directive to the parents of children born before the date laid down for transposition, thus giving retroactive effect to the directive. That would be unlawful because the case-law of the Court has established that Community provisions do not have that effect, save in exceptional cases in which it clearly appears from the wording of the provision that such was the intention of the legislature. (19)

68.   In the present case, the intention of the legislature was different, as various parts of the wording of the framework agreement and the directive showed, in particular recital 10 in the preamble to the latter, according to which the ‘framework agreement set[s] ... minimum requirements on parental leave ... and refer[s] back to the Member States ... for the definition of the conditions under which parental leave would be implemented, in order to take account of the situation, including the situation with regard to family policy, existing in each Member State, particularly as regards the conditions for granting parental leave and exercise of the right to parental leave’.

69.   That, it is contended also justifies the ‘progressive’ introduction of parental leave implemented by Luxembourg. If parental leave had also been granted to the parents of children born before 31 December 1998 (in fact, as we have seen in points 63 and 64, before 3 June 1998), serious difficulties of a practical nature would have arisen in the implementation of the directive because it would have been necessary to establish in each individual case whether those parents had, in respect of the same child, already taken any of the other types of leave previously laid down.

70.   For my part, I must say immediately that I cannot share Luxembourg’s view, for it is well established that ‘difficulties which emerge when it comes to implementing a Community measure cannot constitute a ground for a Member State to exonerate itself from fulfilling its obligations’. (20) Therefore, even if true, the purported complexity of the checks required to implement the directive (see preceding point) could not release Luxembourg from its responsibilities.

71.   Having clarified that point, I come to the central point of dispute between the parties, namely whether the basis of the right to parental leave relates to the fact of the birth or to the tender age of the child and the need for care which derives therefrom.

72.   There is no doubt that it is true, as Luxembourg points out, that, according to the wording of the framework agreement annexed to the directive, the right to parental leave is granted ‘on the grounds of the birth’ of a child. Moreover, it would be difficult to imagine the opposite, in view of the fact that that right exists as such because a child has come into the world. However, that does not mean in my opinion that the basis of the right resides in the birth per se, considered as an event in time. Rather, it appears to me to be evident – and incidentally clearly flows from Clause 2(1) of the framework agreement annexed to the directive – that that basis resides in the need to ensure care for children of a tender age and thus in the intention to enable the parents to devote themselves to the child, obviously once the latter is born and for the period deemed necessary to that end.

73.   However, if that is the case, it also follows that the Commission’s argument does not give retroactive effect to the directive but applies it in a manner which is fully compliant with the principle, confirmed by the settled case-law of the Court, that ‘new rules apply immediately to the future effects of a situation which arose under the old rules’, (21) apply, that is, ‘to current situations’, (22) which in the present case are those determined by the tender age of the child and therefore by the continuing need to provide it with care.

74.   It therefore seems to me that between the two opposing arguments, it is the Commission’s which more correctly respects the aims of the directive. That also seems to be the opinion of the other Member States, if it is true, as the Commission states, that they have all endorsed the Commission’s argument.

75.   However, Luxembourg raises further objections against the action. Above all, Luxembourg seeks to rely on Article 3(4) of the Law of 12 February 1999 (which, we may note, is not challenged in this case – see points 20 and 60 above), which provides that one of the parents is obliged, on pain of losing the right, to apply for parental leave immediately after the conclusion of the maternity leave.

76.   According to the Luxembourg Government, that provision makes it impossible to grant parental leave to parents of children born before 31 December 1998 (that is, before the date fixed by the fifth paragraph of Article 19 of the Law of 12 February 1999). That is because, under that provision, one of the parents of a child born for example on 1 January 1998 would have had to apply for parental leave in the spring of that year, that is, on expiry of the maternity leave. Not having done so, he would have lost that right once and for all.

77.   However, I should point out that as a result of the choice made by the Luxembourg legislature, parental leave would also have to be denied to a parent who is the second one to apply for it, and who could therefore apply for it at any time provided the child had not reached five years of age. It follows that, quite apart from whether Article 3(4) of the Law of 12 February 1999 complies with the directive (which is doubtful), Luxembourg is, at least in this respect, also in breach of its obligations in that if the child is born before 31 December 1998 (or more correctly 3 June 1998), it does not grant parental leave even to a parent who is not covered by that provision.

78.   Finally, Luxembourg maintains that the infringement was brought to an end with the introduction of the sixth paragraph of Article 10 of the Law of 12 February 1999 (which was effected by means of the Law of 21 November 2002 and therefore within the time-limit allowed in the reasoned opinion), because that provision extends the minimum period of parental leave it lays down to parents of children born before the time-limit for transposition of the directive.

79.   However, I would point out that the provision in question merely lays down that ‘[a] definitive rejection by [the competent authority] of an application for the allowance provided for [in respect of parental leave] shall be without prejudice to the possible grant of parental leave by the employer under the conditions laid down by [Directive 96/34]’.

80.   It follows that the parents of children younger than five years, but born before 31 December 1998, would be granted parental leave without an allowance and of a duration of only three months, corresponding to the minimum laid down by the directive, whereas the parents of children also younger than five years but born later would receive parental leave of six months with the allowance.

81.   The same considerations concerning the principle of non-discrimination as formulated above in relation to the first plea in law (see point 49 et seq.), which, it will be remembered, led me to conclude that the abovementioned Luxembourg provision was not a suitable means of correctly transposing the directive (see point 57 above), therefore apply in this context.

82.   It therefore seems to me that the second ground of complaint is well founded.

83.   In the light of the foregoing, I propose that the Court should uphold the present action.

IV –  Costs

84.   Under Article 69(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs if they have been applied for. Since the Commission asked that the Grand Duchy of Luxembourg be ordered to pay the costs and the latter has been unsuccessful, it should be ordered to pay the costs.

V –   Conclusion

85.   In the light of the foregoing, I propose that the Court should:

(1)      declare that, by laying down that a period of maternity leave should bring to an end a period of parental leave where there is an overlap between the two and by restricting the granting of the right to parental leave to parents of children born after 31 December 1998, the Grand Duchy of Luxembourg has failed to comply with its obligations under Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC;

(2)      order the Grand Duchy of Luxembourg to pay the costs.

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1 – Original language: Italian.

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2 – OJ 1996 L 145, p. 4.

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3 – The text of the agreement is annexed to the directive.

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4 – Mémorial A, No 213 of 23 February 1999, p. 209.

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5 – Mémorial A, No 135, of 10 December 2002, p. 3098.

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6 –      Unofficial translation.

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7 – See, amongst others, Case C-152/00 Commission v France [2002] ECR I‑6973, paragraph 15.

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8 – See inter alia Case C-474/99 Commission v Spain [2002] ECR I‑5293, paragraph 25.

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9 – Case C-3/96 Commission v Netherlands [1998] ECR I‑3031, paragraph 21.

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10 – Ibid., paragraph 20.

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11 – Case C-473/93 Commission v Luxembourg [1996] ECR I‑3207, paragraph 21.

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12 – Case 74/82 Commission v Ireland [1984] ECR 317, paragraph 13.

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13 – Case C-366/99 Griesmar [2001] ECR I-9383, paragraph 43, and case-law cited therein.

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14 – Case C-442/00 Rodríguez Caballero [2002] ECR I‑11915, paragraph 32. See also Case C‑189/01 Jippes and Others [2001] ECR I‑5689, paragraph 129, and Case C‑149/96 Portugal v Council [1999] ECR I-8395, paragraph 91.

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15  – Rodríguez Caballero, paragraph 30. See also Case C‑292/97 Karlsson and Others [2000] ECR I-2737, paragraph 37, and Case C-2/92 Bostock [1994] ECR I-955, paragraph 16.

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16  – See, amongst others, Case C-394/00 Commission v Ireland [2002] ECR I‑581, paragraph 11, and Case C‑315/98 Commission v Italy [1999] ECR I‑8001, paragraph 10.

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17  – Case C-209/88 Commission v Italy [1990] ECR I‑4313, paragraph 14. That is because ‘the finding of a failure by a Member State to fulfil its obligations is not bound up with a finding as to the damage flowing therefrom’ (Case C-263/96 Commission v Belgium [1997] ECR I‑7453, paragraph 30). Finally, ‘a Member State may not rely on the argument that the failure to adopt measures to transpose a directive has had no adverse consequences for the functioning ... of that directive’ (ibid.).

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18 – ‘[O]n the grounds of the birth’ and ‘im Fall der Geburt’ respectively.

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19 – Luxembourg refers, inter alia, to Case C-368/89 Crispoltoni [1991] ECR I-3695, paragraphs 17 and 20.

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20 – Case C-314/03 Commission v Luxembourg [2004] ECR 1-0000, paragraph 5. See also Cases 128/78 Commission v United Kingdom [1979] ECR 419, paragraph 10, C‑374/89 Commission v Belgium [1991] ECR I‑367, paragraph 10 and C‑327/98 Commission v France [2000] ECR I-1851, paragraph 21.

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21 – Case C-162/00 Pokrzeptowicz-Meyer [2002] ECR I‑1049, paragraph 50.

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22 – Ibid., paragraph 51.