Case C-84/03: Action brought on 26 February 2003 by the Commission of the European Communities against the Kingdom of Spain
Date: 2003-04-26
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, administrative procedure, national implementing measure, public contract, supplies contract, technical standard, works contract

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,

C 101/26

EN

Official Journal of the European Union

26.4.2003

Article 1(3) thereof private-law undertakings fulfil-
ling the criteria referred to in the three indents of
the second subparagraph of Article 1(b) of each of
the abovementioned directives;

for civil uses (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 that
directive;

— by providing an absolute exclusion from the scope
of
the Public Contracts Law by Article 3(1)(c)
thereof for cooperation agreements between public
authorities and other public undertakings including,
therefore, agreements which are public contracts for
the purposes of the directives; and

— by permitting, in Article 141(a) and Article 182(a)
and (g) of the Public Contracts Law, the negotiated
procedure to be used in two cases which are not
provided for in the directives;

the Kingdom of Spain has failed to fulfil its obligations
under Community law;

— order the Grand-Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed
expired on 30 June 1994.

(1) OJ L 121 of 15.5.1993, p. 20.

2.

order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

These are apparent from the form of order sought.

( 1) OJ L 199 of 9.8.1993, p. 1.
( 2) OJ L 199 of 9.8.1993, p. 54.

Action brought on 27 February 2003 by the Commission
of the European Communities against the Grand-Duchy
of Luxembourg

(Case C-89/03)

(2003/C 101/43)

An action against the Grand-Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-
ties on 27 February 2003 by the Commission of the European
Communities, represented by L. Ström and B. Stromsky, acting
as Agents, with an address for service in Luxembourg.

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 Council Directive 93/15/EEC of 5 April
1993 on the harmonisation of the provisions relating to
the placing on the market and supervision of explosives

Action brought on 28 February 2003 by Commission of
the European Communities against Portuguese Republic

(Case C-93/03)

(2003/C 101/44)

An action against the Portuguese Republic was brought
before the Court of Justice of the European Communities on
28 February 2003 by the Commission of
the European
Communities, represented by Karen Banks and Miguel França,
acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

— declare that, by failing to adopt and bring into force the
laws, regulations and administrative provisions necessary
to comply with Directive 98/71/EC (1) of the European
Parliament and of the Council of 13 October 1998 on
the legal protection of designs or, in any event, by failing
to communicate those provisions to the Commission, the
Portuguese Republic has failed to fulfil its obligations
under Article 19 of that directive;

— order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for implementation of the directive
expired on 28 October 2001.

(1) OJ L 289 of 28 october 1998, p. 28.