Case C-157/03: Action brought on 7 April 2003 by the Commission of the European Communities against the Kingdom of Spain
Date: 2003-06-07
Institutions: Court of Justice
Subjects: EU national, European Commission, Spain, action for failure to fulfil an obligation, family, foreign national, free movement of persons, residence permit

C 135/16

EN

Official Journal of the European Union

7.6.2003

Infringement of Article 1 of Regulation (EEC) No 2241/87 and
Article 2 of Regulation (EEC) No 2847/93: these provisions
require the Member States to monitor fishing activity by
vessels flying their flag. In that connection, they must carry
out all necessary inspections. From the figures concerning the
number of cases of overfishing, and the extent thereof, it is
plainly apparent that the Belgian authorities failed to take
the control measures necessary to prevent those cases of
overfishing.

Infringement of Article 11(2) of Regulation (EEC) No 2241/87
and Article 21(2) of Regulation (EEC) No 2847/93:
the
Belgian authorities clearly acted negligently in regard to the
management of the quotas by failing,
in several cases, to
impose at the appropriate time a closing date for fishing.

Infringement of Article 1(2) of Regulation (EEC) No 2241/87
and 31 of Regulation (EEC) No 2847/93: where fishing vessels
landed fish after the closing date for fishing of the relevant fish
stock or without a quota for that fish stock having been
allocated to Belgium, the masters of those vessels acted in
breach of Community law. The Belgian authorities were
therefore obliged to institute penal or administrative proceed-
ings against those masters or any other persons responsible.
The Belgian Government has provided no evidence that that
has been done.

( 1) OJ 1983 L 24, p. 1.
( 2) OJ 1992 L 389, p. 1.
( 3) OJ 1987 L 207, p. 1.
( 4) OJ 1993 L 261, p. 1.

Action brought on 7 April 2003 by the Commission of
the European Communities against the Kingdom of Spain

(Case C-157/03)

(2003/C 135/23)

The applicant claims that the Court, in upholding its appli-
cation, should:

1. Declare that, by imposing, contrary to Directives 68/
360 (1), 73/148 (2) and 90/365 (3), the obligations to
obtain a residence visa for the issue of a residence permit
to nationals of a non-Member State, who are members of
the family of a Community national who has exercised
his right to freedom of movement, and, by not granting,
contrary to Directive 64/221 (4), a residence permit as
soon as possible and, at the latest, within the six months
following the application for a permit, the Kingdom of
Spain has failed to fulfil its obligations under the EC
Treaty.

2. Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The formalities which may be required by a Member State of a
Community national exercising his right to freedom of move-
ment or of a member of his family are clearly circumscribed
by the relevant Community legislation with the result that, in
the Commission’s view, it is plainly contrary to the letter and
spirit of Community law, as laid down in Directives 68/360,
73/148 and 90/360, for a Member State to require any other
formality in connection with entry or residence.

As a consequence of that premiss, the Commission is of the
view that the Spanish legislation and practice, in accordance
with the matters established, conflict with those principles of
Community law. Essentially, the residence visa required under
Spanish legislation is an instrument enabling the national
authorities to examine — prior to entry into Spanish territory
— the reasons why a national of a non-Member State wishes
to reside for more than three months on national territory.

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 7 April
2003 by the Commission of the European Communities,
represented by Carmel O’Reilly, Legal Adviser, and by Luis
Escobar Guerrero, of its Legal Service, with an address for
service in Luxembourg.

The national of a non-Member State who is the member of the
family of a Community national exercising the right
to
freedom of movement cannot be assimilated to the national of
a non-Member State without that family tie. On the contrary,
that national of a non-Member State is the beneficiary of
derived rights under Community law and thus enjoys rights of
entry into and residence in the territory of another Member
State at the same time as the Community national.

7.6.2003

EN

Official Journal of the European Union

C 135/17

That national of a non-Member State may not be required to
show any independent reason for entering into and residing in
is
the territory. His right, as a matter of Community law,
derived from the right enjoyed by the Community national in
such a way that to impose on that person prior formalities
concerning entry into national territory constitutes not only a
restriction on his (derived) right but also a restriction on the
principal right of the Community national.

The Commission at the same time emphasises that, in con-
formity with the general system of the Community rules on
the issue of residence permits and, with particular regard to
Article 5 of Directive 64/221, the Member State must adopt
the decision concerning the residence permit as soon as
possible and in any event not later than six months of the date
of the application, it being understood that this maximum
period of six months is to be taken into account only in
cases where examination of the application is interrupted on
grounds of public policy.

( 1) Directive 68/360 of 15 October 1968 on the abolition of
restrictions on movement and residence within the Community
for workers of Member State and their families (OJ, English Special
Edition 1968 (I), p. 485).

( 2) Directive 73/148/EEC of 21 May 1973 on the abolition of
restrictions on movement and residence within the Community
for nationals of Member States with regard to establishment and
the provision of services (OJ 1973 L 172, p. 14).

( 3) Council Directive 90/365 of 28 June 1990 on the right of
residence for employees and self-employed persons who have
ceased their occupational activity (OJ 1990 L 180 p. 28).

( 4) Directive 64/221/EEC of the Council of 25 February 1964 on the
coordination of special measures concerning the movement and
residence of foreign nationals which are justified on grounds of
public policy, public security or public health (OJ English Special
Edition (1963-1964) I, p. 117).

Action brought on 7 April 2003 by the Commission of
the European Communities against the Kingdom of Spain

The applicant claims that the Court should:

1. Declare that, by including in the invitation to bid in
various tender procedures organised by the Instituto
Nacional de la Salud para la prestación de servicios de
terapias respiratorias domiciliarias criteria for admission,
assessment and selection which require bidders to have,
at the time of submitting the bid, certain installations on
Spanish territory, or within a radius of 1 000 kilometres
thereof, and, prior to that, public information offices in
specific locations, or that they should at the time be
providing the same kind of service, the Kingdom of Spain
has failed to fulfil its obligations under Articles 43 and 49
EC;

2. Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission takes the view that the invitations to bid
relating to the tender procedures which are the subject of these
proceedings are discriminatory inasmuch as they are not
justified by any overriding reason relating to the public interest
nor do they observe the principle of proportionality.

Appeal brought on 7 April 2003 by Jan Pflugradt against
the order of the Court of First Instance of the European
Communities (Fifth Chamber) of 11 February 2003 in
Case T-83/02, Jan Pflugradt v European Central Bank

(Case C-159/03 P)

(2003/C 135/25)

(Case C-158/03)

(2003/C 135/24)

An appeal against the order of the Court of First Instance of
the European Communities (Fifth Chamber) of 11 February
2003 in Case T-83/02, Jan Pflugradt v European Central Bank,
was brought before the Court of Justice of the European
Communities on 7 April 2003 by Jan Pflugradt, represented
by Dr Norbert Pflüger, 44 Kaiserstrasse, D-60329 Frankfurt
am Main, with an address for service in Luxembourg.

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 7 April
2003 by the Commission of the European Communities,
represented by Gregorio Valero Jordana and Klaus Wiedner, of
its Legal Service, acting as Agents, with an address for service
in Luxembourg.

The appellant claims that the Court, at the same time as it sets
aside the order appealed against, should:

1. Declare the action admissible;