Case C-82/03: Action brought on 25 February 2003 by the Commission of the European Communities against the Italian Republic
Date: 2003-04-26
Institutions: Court of Justice
Subjects: European Commission, Italy, accident prevention, action for failure to fulfil an obligation, exchange of information, occupational health, occupational safety

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,