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.