C 264/24 EN 1.11.2003 Official Journal of the European Union
Pleas in law and main arguments
Under Article 18 of Directive 96/67/EC the Member States are
entitled to take measures to protect the rights of workers.However, such measures must be without prejudice to the
application of that directive, and subject to the other provisions
of Community law. Although Council Directive 2001/23/ECof 12 March 2001 on the approximation of the laws of theMember States relating to the safeguarding of employees’
rights in the event of transfers of undertakings, businesses or
parts of undertakings or businesses (
2) does not apply in cases
where only a specific share of the market is ‘transferred’ toanother undertaking as part of an opening-up of the market,
Paragraph 8(2) of the Verordnung über Bodenabfertigungs-
dienste auf Flugplätzen (BADV) authorises the managing bodyof an airport to impose a general obligation on new bidders totake on airport staff, as part of the standard terms for tender
and selection procedures, irrespective of whether there has
been a transfer for the purposes of Directive 2001/23/EC. Theclear effect of Paragraph 8(2) of the BADV is therefore to deternew undertakings from entering the market and to impede
their competitiveness, thereby reducing the benefits of liberalis-
ation as regards reduction of prices and improvement in thequality of services.
Furthermore, Paragraph 9(3) of the BADV permits the manag-
ing body of an airport to charge higher fees for access toairport installations in cases where suppliers and selfhandlersdo not take on any staff from the airport operator upon
entering the market. That provision infringes Article 16(3) of
Directive 96/67/EC which provides that the fee for access toairport installations is to be determined according to relevant,objective, transparent and non-discriminatory criteria. The
failure to take on airport staff is not a criterion which meets
any of those requirements. Rather, that provision even enablesthe airport operator to charge selfhandlers or suppliers ofservices a higher fee for access to airport installations if they
do not take on its staff, and thereby makes it possible for the
airport to discriminate against its direct competitors.
(1) OJ 1996 L 272, p. 36.
(2) OJ 2001 L 82, p. 16.
Action brought on 15 September 2003 by the Hellenic
Republic against the Commission of the European Com-
munities
(Case C-387/03)
(2003/C 264/41)
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the EuropeanCommunities on 15 September 2003 by the Hellenic Republic,
represented by I. Khalkias and E. Svolopoulou, Members of the
State Legal Service, with an address for service in Luxembourg
at the Greek Embassy, 27 rue Marie-Adelaïde.
The applicant asks the Court to:
— annul Commission Decision C(2003)2587 excluding
from Community financing certain expenditure incurredby the Member States under the EAGGF — GuaranteeSection, in so far as concerns financial corrections
chargeable to the Hellenic Republic in the wine, livestock
premiums and olive oil sectors for the year 1999-2000.
Pleas in law and main arguments
1. Infringement of law and of general principles.2. Infringement of the principle of proportionality —
misuse of discretion.
3. Error as to the facts, misassessment of the factual
circumstances, inadequate statement of reasons for the contest-ed decision.
4. Misinterpretation and misapplication of Article 5(2)(c) of
Regulation No 729/70.
Action brought on 16 September 2003 by the Com-
mission of the European Communities against the Italian
Republic
(Case C-392/03)
(2003/C 264/42)
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 16 Septem-ber 2003 by the Commission of the European Communities,represented by A. Bordes and L. Visaggio, acting as Agents.
1.11.2003 EN C 264/25 Official Journal of the European Union
The applicant claims that the Court should:
— find that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply withCouncil Directive 1999/74/EC of 19 July 1999 layingdown minimum standards for the protection of laying
hens (
1) or, in any event, by failing to communicate the
same to the Commission, the Italian Republic has failedto fulfil its obligations under Article 13(1) of thatdirective;
— order the Italian Republic to pay the costs.
Pleas in law and main arguments
The time-limit for transposing the directive expired on 1 Janu-
ary 2002.
(1) OJ L 203 of 3.8.1999, p. 53.
Action brought on 18 September 2003 by the Republic
of Austria against the Commission of the European
Communities
(Case C-393/03)
(2003/C 264/43)
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the EuropeanCommunities on 18 September 2003 (fax: 11.9.03) by the
Republic of Austria, represented by Dr Harald Dossi of the
Constitutional Service of the Federal Chancellor’s Office of theRepublic of Austria, with an address for service in Luxembourg.
The applicant claims that the Court should:
— annul the negative opinion of the Commission of 1 July
2003 definitively refusing the request for action submit-ted to the Commission by the Republic of Austria under
the second paragraph of Article 232 EC;
— order the Commission to pay the costs.
In the alternative, the Republic of Austria claims that the Court
should:
— annul the Commission’s decision of 1 July 2003 ordering
the non-application of Article 11(2)(c) of Protocol No 9to the 1994 Act of Accession (
1) and the full award of
ecopoints for the year 2003;— order the Commission to pay the costs.
Pleas in law and main arguments
(Main application)
Infringement of the EC Treaty and/or of Protocol No 9 to the
1994 Act of Accession by definitively refusing the requestmade under the second paragraph of Article 232 EC. TheCommission wrongly seeks to deduct from the number of
transit journeys declared overall for the year 2002 (1 718 622)
journeys declared as transit journeys in respect of which thereis no information on departure (69 433), journeys declared astransit journeys where both entry and departure were effected
at the same border point (52 642) and journeys involving
‘piggyback transportation’ (7 812).
The ecopoint system under Protocol No 9 to the 1994 Act of
Accession is based on the principle of declarations. Accord-
ingly, if journeys are clearly declared by a driver as transit
journeys, they are included within the ecopoint statistics andare relevant to the question whether the 108 % threshold hasbeen exceeded, whereupon the Commission is bound under
Article 11(2)(c) of Protocol No 9, in conjunction with para-
graph 3 of Annex 5 thereto, to adopt appropriate measures,namely to reduce the number of ecopoints for the followingyear in accordance with a calculation method laid down in the
Annex to the Protocol. It cannot, in the light of the principle
of declarations, be for the Republic of Austria, either legally orfactually, to provide evidence in each individual case that,where a journey is clearly declared to be a transit journey, such
a transit journey actually took place. The Republic of Austria
merely has to deduct journeys declared to be transit journeyswhere it is beyond doubt that, despite a clear declaration, therecannot have been a transit journey. It clearly follows, therefore,
that the 108 % threshold was exceeded in 2002. In the light of
its decision of 1 July 2003, the Commission consequentlyfailed to fulfil its obligations under Protocol 9 to the 1994 Actof Accession, in particular its obligations under Article 11(2)(c)
in conjunction with Article 16 and paragraph 3 of Annex 5 to
that Protocol, thereby creating grounds for annulment onaccount of infringement of the EC Treaty and/or of Protocol
No 9 to the 1994 Act of Accession pursuant to the second
paragraph of Article 230 EC.
(In the alternative)
Infringement of the EC Treaty and/or of Protocol No 9 to the
1994 Act of Accession. In relation to the grounds, the
applicant refers to its arguments regarding the first plea in law.
(1) Protocol No 9 on road, rail and combined transport in Austria.