Case C-57/03: Action brought on 12 February 2003 by the Commission of the European Communities against the Italian Republic
Date: 2003-04-05
Institutions: Court of Justice
Subjects: Italy, action for failure to fulfil an obligation, arrangement of working time, national implementing measure, periodic penalty payment

5.4.2003

EN

Official Journal of the European Union

C 83/11

Action brought on 11 February 2003 by the Commission
of the European Communities against the Kingdom of
Spain

Action brought on 12 February 2003 by the Commission
of the European Communities against the Grand-Duchy
of Luxembourg

(Case C-55/03)

(2003/C 83/17)

(Case C-56/03)

(2003/C 83/18)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 11 Febru-
ary 2003 by the Commission of the European Communities,
represented by Maria Patakia, Legal Adviser, and Marina
Valverde López, a member of the auxiliary staff of its Legal
Service, with an address for service in Luxembourg.

An action against the Grand-Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-
ties on 12 February 2003 by the Commission of the European
Communities, represented by Karen Banks, acting as Agent,
with an address for service in Luxembourg.

The applicant claims that the Court should:

— Declare that, by failing to implement Council Directives
89/48/EEC of 21 December 1988 (1) and 92/51/EEC of
18 June 1992 (2) on a second general system for the
recognition of professional education and training to
supplement Directive 89/48/EEC in connection with the
profession of air traffic controller in the civil sector, the
Kingdom of Spain has failed to fulfil its obligations under
the EC Treaty;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Council Directives 89/48/EEC and 92/51/EEC apply, not to
diplomas awarded on completion of academic education but
rather to diplomas awarded on completion of education and
training at the end of which the holder of such a diploma is
fully qualified to practise a given profession. In consequence,
it is not the diploma giving access to training as an air traffic
controller which must be recognised in accordance with those
directives, but the final diploma giving access to the profession
of air traffic controller in the civil sector. Having regard to the
provisions of Royal Decree 3/1998, the Commission considers
that that profession is regulated in Spain for the purposes of
Article 1(d) of Directive 89/48/EEC and the settled case-law of
the Court of Justice.

The Member States are required to transpose directives into
their national
legal order. The fact that there exists a law
approved by Eurocontrol does not relieve Spain of that
obligation.

( 1) Council Directive 89/48/EEC of 21 December 1988 on a general
system for the recognition of higher-education diplomas awarded
on completion of professional education and training of at least
three years’ duration (OJ L 19 of 24 January 1989, p. 16).

( 2) Council Directive 92/51/EEC of 18 June 1992 on a second general
system for the recognition of professional education and training
to supplement Directive 89/48/EEC (OJ L 209 of 24 July 1992,
p. 25).

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

— Declare that, by failing to bring into force the laws,
regulations and administrative provisions necessary to
comply with Directive 98/71/EC of the European Parlia-
ment and of the Council of 13 October 1998 on the legal
protection of designs (1), or in any event by failing to
inform the Commission of those provisions, the Grand-
Duchy of Luxembourg has failed to fulfil its obligations
under Article 19 of that directive;

— Order the Grand-Duchy of Luxembourg to pay the costs

of the proceedings.

Pleas in law and main arguments

The period within which the directive had to be transposed
expired on 28 October 2001.

(1) OJ L 289 of 28.10.1998, p. 28.

Action brought on 12 February 2003 by the Commission
of the European Communities against the Italian Republic

(Case C-57/03)

(2003/C 83/19)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 12 February
2003 by the Commission of the European Communities,
represented by Antonio Aresu, acting as Agent.

C 83/12

EN

Official Journal of the European Union

5.4.2003

The applicant claims that the Court should:

a)

b)

declare that, by not adopting the measures necessary to
comply with the judgment of the Court of Justice of the
European Communities of 9 March 2000 in Case C-386/
98 (1), the Italian Republic has failed to fulfil its obligations
under Article 228(1) EC.

impose a penalty payment on the Italian Republic in the
sum of EUR 238 950 per day from the date of notification
of the judgment in the present case to the date of
execution thereof.

c)

order the Italian Republic to pay the costs.

Pleas in law and main arguments

Under Article 228(1) EC, where the Court of Justice finds that
a Member State has failed to fulfil an obligation under the
Treaty, that State is required to take the measures necessary to
comply with the judgment of the Court of Justice.

Notwithstanding the repeated assurances of the Italian Govern-
ment that the implementation of Directive 93/104 (2) into
Italian law was imminent, it must be found that Italy has
not yet notified the Commission of the national measures
implementing that directive. It should be noted that, pursuant
to Article 18(1)(a) and (c) of Directive 93/104, those measures
should have been notified by 23 November 1996.

In those circumstances, the Commission must find that the
Italian Republic has failed to adopt the measures necessary to
comply with the judgment of the Court of 9 March 2000 in
Case C-386/98, and has thus failed to fulfil its obligations
under Article 228 EC.

Reference for a preliminary ruling by the Raad van State
by order of that Court of 4 February 2003 in the case of
Y.G. Encheva against Staatssecretaris van Justitie

(Case C-58/03)

(2003/C 83/20)

Reference has been made to the Court of
Justice of the
European Communities by order of the Raad van State (Council
of State) of 4 February 2003, received at the Court Registry on
12 February 2003, for a preliminary ruling in the case of
Y.G. Encheva against Staatssecretaris van Justitie on the
following questions:

1.

Is Article 59(1) of the Agreement establishing an associ-
ation between the European Communities and their
Member States, of the one part, and the Republic of
Bulgaria, of the other part, to be interpreted as precluding
the refusal of an application made in the Netherlands for
an ordinary residence permit subject to a restriction that
the person concerned be ‘self-employed’ on the grounds
that the foreigner concerned, who is a national of
Bulgaria, did not apply in that country or in the country
of permanent residence for a temporary residence author-
isation to be issued to that end and await the decision
thereon in that country before coming to the Netherlands
and therefore failed not satisfy the requirement laid down
by Article 3.71(1) of the Vb 2000?

2. Does the fact that, unlike the situation concerned in the
judgment of the Court of Justice of 27 September 2001
in Case C-257/99 [Barkoci and Malik], the foreigner
concerned already intended to work as a self-employed
person before leaving Bulgaria for the Netherlands and
failed to apply for such authorisation in Bulgaria despite
having an opportunity to do so have any bearing on the
answer to the first question?

Reference for a preliminary ruling by the Tribunale di
Genova — Sezione Lavoro by order of that Court of
28 January 2003 in the case of Mario Cigliola and Others
against Ferrovie dello Stato SpA

Pursuant to Article 228(2) EC, the Commission requests that
the Court impose a penalty on the Italian Republic in the sum
of EUR 238 950 for each day’s delay in complying with the
Court’s judgment in Case C-386/98, with effect from the date
of judgment in the present case.

(Case C-59/03)

(2003/C 83/21)

( 1) OJ C 149 of 27.5.2000, p. 2.
( 2) OJ L 307 of 13.12.1993, p. 18.

Reference has been made to the Court of
Justice of the
European Communities by order of the Tribunale di Genova
— Sezione Lavoro (District Court, Genoa — Employment
Division) of 28 January 2003, received at the Court Registry
on 13 February 2003, for a preliminary ruling in the case of
Mario Cigliola and Others against Ferrovie dello Stato SpA on
the following question: