Case C-433/02: Action brought on 29 November 2002 by the Commission of the European Communities against the Kingdom of Belgium
Date: 2003-01-25
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, copyright, heritage protection, intellectual property

25.1.2003

EN

Official Journal of the European Communities

C 19/23

seq EC), the right of establishment (Article 43 et seq. EC)
and freedom to provide services (Article 49 et seq. EC), as
interpreted by the Court of Justice. Of particular relevance
in that regard are national rules and/or administrative
practices which:

nationals on the basis of periods of study completed
with foreign institutions operating in Italy even
though they are approved and accredited by the
competent public authorities in the Member State to
which they belong;

— impede the Italian establishment of a limited com-
pany whose principal business is in the United
Kingdom from carrying on in the host state the
business of organising and administering courses of
study for preparation for university examinations,
for which the company is duly authorised and
accredited by the United Kingdom public auth-
orities?

— discriminate as between nationals pursuing the same

activities;

— prohibit and/or seriously impede the Italian estab-
lishment of that undertaking in obtaining, in another
Member State and for valuable consideration, the
services conducive to the pursuit of the abovemen-
tioned activity;

— discourage students from enrolling in those courses

of study;

— impede the professional training of enrolled students
and the obtaining of an award capable of conferring
on its holder advantages either in securing access to
a professional activity or in exercising it with greater
reward in other Member States as well.

2. On an interpretation — herein requested — of Article 2
of Council Directive 89/48/EC (1), does that directive
confer rights which may be relied on also before acqui-
sition of the degree mentioned in Article 1 of the directive
itself. If the reply to that question is affirmative, does the
directive itself, regard also being had to the judgment in
Case C-145/99 Commission v Italian Republic [2001] (2),
permit rules or administrative practices in the national
legal order which:

— make recognition of university degrees obtained on
three years’
training of at
least
to the discretion of the public

completion of
duration subject
authorities;

— require production of an attestation from the diplo-
matic representation — Italian consulate in the
foreign country in which the degree was awarded —
proving actual residence in that country by the
person concerned for the whole period of the
university studies;

— limit recognition of degrees ‘solely’ to pursuit of a
profession already pursued in the State of origin,
thus precluding recognition for the purposes of
access to a regulated profession even though not
previously exercised.

training’

3. What is the meaning and scope of the expression ‘harmful
interruption (...) of vocational
in Council
Decision 63/266/EEC (3) and does it cover the creation at
national level by the public authorities of a permanent
information which evidences that degrees
system of
awarded by a university, even though legally recognised
in the United Kingdom, cannot be recognised under
national legislation if they have been obtained on the
basis of periods of study completed in Italy.

(1) OJ L 19 of 24.1.1989, p. 16.
(2) OJ C 109 of 4.5.2002, p. 2.
(3) OJ 63 of 20.4.1963, p. 1338 (English special edition...: Series-I

(63-64) p. 25).

Action brought on 29 November 2002 by the Com-
the
mission of

the European Communities against

Kingdom of Belgium

(Case C-433/02)

(2003/C 19/40)

— grant recognition in Italy of degrees awarded by
universities recognised in the United Kingdom only
if completed after regular attendance for the whole
course of studies at
to the
exclusion therefore of degrees awarded to Italian

those universities,

An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities on
29 November 2002 by the Commission of the European
Communities, represented by K. Banks, acting as Agent, with
an address for service in Luxembourg.

C 19/24

EN

Official Journal of the European Communities

25.1.2003

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

— Declare that, by failing to apply the provisions on the
public lending right set out in Directive 92/100/EEC of
19 November 1992 on rental right and lending right and
on certain rights related to copyright in the field of
intellectual property, (1) the Kingdom of Belgium has
failed to fulfil its obligations under Articles 1 and 5 of
that Directive;

— Order the Kingdom of Belgium to pay the costs of the

proceedings.

Pleas in law and main arguments

Although Belgium has provided for a right to remuneration
for authors in those cases in which the latter cannot prohibit
lending, none of the implementing measures provided for by
Article 63 of
the Law of 30 June 1994 on copyright
and related rights has been adopted and the amount of
remuneration has therefore never been fixed.

The Belgian authorities err in invoking difficulties in dis-
tinguishing the categories of establishments which may be
exempted under Article 5(3) of the Directive. If the circum-
stances prevailing in the Member State in question do not
make it possible to draw a valid distinction between categories
of establishments, the solution must
lie in imposing the
obligation to pay the remuneration in question on all of the
establishments concerned.

( 1) OJ 1992 L 346 of 27.11.1992, p. 61.

Action brought on 2 December 2002 by the Commission
of the European Communities against Ireland

(Case C-436/02)

(2003/C 19/41)

An action against Ireland was brought before the Court of
Justice of the European Communities on 2 December 2002 by
the Commission of the European Communities, represented
by Knut Simonsson, acting as agent, with an address for service
in Luxembourg.

The Applicant claims that the Court should:

1)

declare that, by failing to carry out an annual total
number of inspections corresponding to at least 25 % of
the number of individual ships which entered its ports

during the years 1999 and 2000, Ireland has failed to
fulfil its obligations under Article 5 (1) of Directive 95/
21/EC of 19 June 1995 on port State control of
shipping (1);

2)

order Ireland to pay the costs.

Pleas in law and main arguments

Article 5(1) of Directive 95/21/EC,
in its wording at the
material time, imposes an obligation on each Member State to
inspect at least 25 % of the number of individual foreign ships
which enter its ports in a given year. It is clear from the facts
that
this obligation for the years
1999 and 2000 because in those years it inspected 7,5 % and
14,6 % respectively of the number of ships that entered its
ports.

Ireland failed to fulfil

(1) Council Directive 95/21/EC of 19 June 1995 concerning the
enforcement, in respect of shipping using Community ports and
sailing in the waters under the jurisdiction of the Member States,
of international standards for ship safety, pollution prevention
and shipboard living and working conditions (port State control)
(OJ L 157, 07.07.1995, p. 1).

Action brought on 4 December 2002 by the Commission
of the European Communities against the French Republic

(Case C-439/02)

(2003/C 19/42)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 4 December
2002 by the Commission of the European Communities,
represented by K. Simonsson and W. Wils, acting as Agents.

The applicant claims that the Court should:

1. Declare that, by failing to carry out a number of annual
inspections corresponding to at least 25 % of the number
of individual vessels entering its ports in 1999 and 2000,
the French Republic has failed to fulfil its obligations
under Council Directive 95/21/EC of 19 June 1995
concerning port State control (1);

2. Order the French Republic to pay the costs.