Case C-81/03: Action brought on 24 February 2003 (by fax on 21 February 2003) by the Commission of the European Communities against the Republic of Austria
Date: 2003-04-26
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, freedom to provide services, liberal profession, paramedical profession, right of establishment

C 101/24

EN

Official Journal of the European Union

26.4.2003

the case and made a manifest error of assessment. The
Court of First Instance thus infringed Articles 230, 232
and 234 EC as well as the Statute and the Rules of
Procedure.

( 1) OJ C 44 of 22.2.2003.

Action brought on 21 February 2003 by Commission of
the European Communities against Kingdom of Spain

(Case C-79/03)

(2003/C 101/39)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 21 Febru-
ary 2003 by the Commission of the European Communities,
represented by Gregorio Valero Jordana, of its Legal Service,
with an address for service in Luxembourg.

The applicant claims that the Court should:

— declare that, by tolerating the practice of hunting with
birdlime in the Autonomous Community of Valencia,
governed by Decree 135/2000 of 12 September 2000 of
the Government of Valencia laying down conditions and
requirements for the granting of special permits for the
hunting of thrush with birdlime in the Community of
Valencia, the Kingdom of Spain has failed to fulfil its
obligations under Article 8(1) and Article 9(1) of Council
Directive 79/409/EEC (1) of 2 April 1979 on the conser-
vation of wild birds.

— order the Kingdom of Spain to pay the costs.

The Commission takes the view that there are alternative
methods for capturing thrushes with the aim of avoiding
damage to crops, such as hunting with rifles or employing
auditory or visual deterrents using flare guns, vibrating tapes
or a combination of such methods. In other Spanish regions
(Andalusia, Castilla-La Mancha, etc) there are extensive areas
of olive groves and vineyards where hunting with lime is not
permitted and where hunting with rifles in autumn and winter
is considered adequate protection.

Finally, the derogation under Article 9(1)(c) of Directive 79/
409/EEC cannot apply in view of the fact that the parany is a
non-selective hunting method and the high number of speci-
mens captured.

(1) OJ 1979 L 103, p. 1.
(2) According to Article 4(1) of Decree 135/2000, ‘the only species
whose capture is permitted are the following: song thrush (Turdus
philomenus), fieldfare (Turdus pilares), redwing (Turdus iliacus)
and mistle thrush (Turdus viscivorus)’.

Action brought on 24 February 2003 (by fax on 21 Febru-
ary 2003) by the Commission of the European Communi-
ties against the Republic of Austria

(Case C-81/03)

(2003/C 101/40)

An action against the Republic of Austria was brought
before the Court of Justice of the European Communities on
24 February 2003 (by fax on 21 February 2003) by the
Commission of the European Communities, represented by
Maria Patakia, Legal Adviser in the Commission’s legal service
and Claudia Schmidt, a member of the Commission’s legal
service, with an address for service at the office of Luis Escobar
Guerrero, a member of the Commission’s legal service, Wagner
Centre C 254, Luxembourg-Kirchberg.

Pleas in law and main arguments

The Commission claims that the Court should:

The ‘parany’ is an arrangement intended for the capture of
thrush (2), which requires the use of small twigs impregnated
with birdlime. Hunting with birdlime is a non-selective method
of capture, as referred to in Annex IV(a) to Directive 79/409/
EEC and, accordingly, prohibited under Article 8 thereof, since
it cannot be guaranteed that birds of the species listed in
Annex I to Directive 79/409/EEC or other protected migratory
or non-hunting species are not caught in the parany and
trapped in the lime.

1.

declare that, by prohibiting, under Paragraph 7a of
the Bundesgesetz über die Regelung der gehobenen
medizinisch-technischen Dienste (Federal Law on the
Regulation of Higher Medico-Technical Services; ‘MTD-
Gesetz’), the independent exercise in Austria of certain
medico-technical professions
(laboratory, radiological
and orthoptic services), the Republic of Austria has failed
to fulfil its obligations under Articles 43 and 49 EC;

2.

order the Republic of Austria to pay the costs.

26.4.2003

EN

Official Journal of the European Union

C 101/25

Pleas in law and main arguments

Pleas in law and main arguments

Medico-technical laboratory, radiology and orthoptic services
may not be exercised on an independent basis in Austria. For
the exercise of
those three professions, an employment
relationship is necessary. A member of those professional
categories from another Member State, where the exercise of
those professions on an independent basis is entirely normal,
therefore has no opportunity to carry on his or her profession
in Austria as an independent. That national measure therefore
undoubtedly constitutes an obstacle to the freedom of estab-
lishment and the freedom to provide services.

The Commission finds the Republic of Austria’s argument to
justify that measure unconvincing. It has not been sufficiently
demonstrated that salaried employment relationships in the
paramedical sector concerned are in themselves sufficient to
ensure, or at least better able to ensure, a higher level of health.
The prohibition under Austrian law of the exercise of those
three professions on an independent basis constitutes an
unjustified restriction and therefore an infringement of the
freedom of establishment and the freedom to provide services
laid down by Articles 43 and 49 EC.

In 2000 the Commission received a complaint from an
economic operator alleging wrongful implementation in Itali-
an law of Council Directive 89/655/EEC (1) of 30 November
1989 concerning the minimum safety and health requirements
for the use of work equipment by workers at work (second
individual Directive within the meaning of Article 16(1) of
Directive 89/391/EEC).

Despite being contacted by the Commission on numerous
occasions, the Italian authorities have failed to provide any
information on the complainant’s allegations. That failure
to communicate information repeatedly requested by the
Commission constitutes a failure to fulfil
the obligation,
imposed on Member States by Article 10 EC, to offer genuine
cooperation to the Community institutions.

(1) OJ L 393 of 30.12.1989, p. 13.

Action brought on 26 February 2003 by the Commission
of the European Communities against the Kingdom of
Spain

Action brought on 25 February 2003 by the Commission
of the European Communities against the Italian Republic

(Case C-84/03)

(2003/C 101/42)

(Case C-82/03)

(2003/C 101/41)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 25 February
2003 by the Commission of the European Communities,
represented by Antonio Aresu, acting as Agent.

The applicant claims that the Court should:

a)

find that the Italian Republic, by failing to offer the
Commission any genuine cooperation in a case concern-
ing the health and safety of workers, has failed to fulfil its
obligations under Article 10 EC, and

b)

order the Italian Republic to pay the costs.

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 26 Febru-
ary 2003 by the Commission of the European Communities,
represented by G. Valero Jordana and K. Wiedner, with an
address for service in Luxembourg.

The applicant claims that the Court of Justice should:

1.

declare that, by failing correctly to incorporate into
national law Council Directive 93/36/EEC of 14 June
1993 coordinating procedures for the award of public
supply contracts (1) and Council Directive 93/37/EEC of
14 June 1993 concerning the coordination of procedures
for the award of public works contracts (2) and,
in
particular:

— by excluding from the scope of Royal Legislative
Decree 2/2000 of 16 June approving the revised
and codified Public Contracts Law by, specifically,