Action brought on 8 April 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-165/05)

(2005/C 132/38)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 8 April 2005 by the Commission of the European Communities, represented by Gérard Rozet, acting as Agent, with an address for service in Luxembourg.

The Commission of the European Communities claims that the Court should:

Pleas in law and main arguments:

Article 11 of Regulation No 1612/68 provides that, where a national of a Member State is pursuing an activity as an employed or self-employed person in the territory of another Member State, his spouse and those of the children who are under the age of 21 years or dependent on him are to have the right to take up any activity in an employed capacity throughout the territory of that State, even if they are not nationals of any Member State.

The right to work is unconditional and means that a spouse or other family member who is a national of a non-member country cannot be required to apply for or obtain a work permit in order to be able to take up an activity as an employed person inasmuch as that would have the effect of rendering that right subject to a further prior condition at variance with the express provisions of the aforementioned Article 11.

Luxembourg nationals are not required to hold a work permit in order to be able to take up employment in the Grand Duchy. It is for that reason contrary to Article 3 of Regulation No 1612/68 to impose such an obligation on nationals of non-member countries married to migrant workers from the European Union.

The national statutory framework must dispel all doubt and ambiguity not only as to the content of the applicable national rules but also in regard to the formal value of those rules.

The incompatibility of the national legislation with Treaty provisions, even those directly applicable, can be definitively removed only by way of internal provisions that are mandatory in nature and have the same legal status as those to be amended.

(1)  OJ, English Special Edition 1968 (II), p. 475.