Case C-138/03: Action brought on 27 March 2003 by Italian Republic against Commission of the European Communities
Date: 2003-06-07
Institutions: Court of Justice
Subjects: European Commission, Italy, action for annulment (EU), aid system, higher education, regional aid, research, technology

7.6.2003

EN

Official Journal of the European Union

C 135/13

information, which is intended to protect ‘the interests of
shareholders and third parties’, permits only shareholders
and creditors to apply for the imposition of penalties, thus
depriving third parties generally of effective protection?

4. Must the directives mentioned, and in particular the
provisions of Article 44(2)(g) of the Treaty Establishing
the European Community, Article 2(1)(f) and Article 6 of
the First Directive and Article 2(2), (3) and (4) of the
Fourth Directive, as amended by Directive 83/349/EEC
and Directive 90/605/EEC, be interpreted as precluding
the legislation of a Member State under which, in the case
of breach of the duty to publish true and fair company
information, which is intended to protect ‘the interests of
shareholders and third parties’, lays down rules for the
prosecution of offences and a system of penalties which
are differentiated, reserving to cases where material
damage or loss is caused to shareholders or creditors the
right to submit a complaint and apply for the imposition
of sanctions and reserving to such cases sanctions which
are serious and effective?

( 1) OJ, English Special Edition 1968 (I), p. 41.
( 2) OJ L 222 of 14.08.1978, p. 11.
( 3) OJ L 193 of 18.07.1983, p. 1.
( 4) OJ L 317 of 16.11.1990, p. 60.

Article 9(1) of the directive (for which no provision is
made in the Austrian legal system) — save in cases of
urgency — where appeals against its decisions may be
lodged with the courts of public law only subject to the
following limitations: such appeals have no suspensory
effect from the outset and the courts are not barred from
taking a decision on appropriateness and are able merely
to annul the contested decision. Moreover, is one court
(the Verwaltungsgerichtshof — the Higher Administrative
Court) limited, as regards the findings of the facts, to
an examination of conclusiveness, and the other (the
Verfassungsgerichtshof — the Constitutional Court) also
limited to an examination of the infringement of rights
guaranteed by the constitution?

2. Are the guarantees of judicial protection provided by
the directive referred to in
Articles 8 and 9(1) of
paragraph 1 to be applied to Turkish nationals who enjoy
legal status under Article 6 or Article 7 of Decision No 1/
80 of the Association Council — set up by the Agreement
establishing an Association between the European Econ-
omic Community and Turkey — of 19 September 1980
on the development of the Association (‘the Association
Council decision’)?

(1) OJ L 56 of 04.04.1964, p. 850.

Reference for a preliminary ruling by the Verwaltungsge-
richtshof by order of that Court of 18 March 2003 in the
joint appeals lodged by (1) Georg Dörr and by (2) Ibrahim
Ünal

(Case C-136/03)

(2003/C 135/18)

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgerichts-
hof (Higher Administrative Court [Austria]) of 18 March 2003,
received at the Court Registry on 26 March 2003, for a
preliminary ruling in the joint appeals lodged by (1) Georg
Dörr and by (2) Ibrahim Ünal on the following questions:

1. Are Articles 8 and 9 of Council Directive 64/221/EEC of
25 February 1964 (1) on the co-ordination of special
measures concerning the movement and residence of
foreign nationals which are justified on grounds of public
policy, public security or public health (‘the directive’)
to be interpreted as meaning that the administrative
authorities may not — notwithstanding the existence of
an internal appeal facility — take a decision ordering
expulsion from the territory without obtaining an opinion
from a competent authority within the meaning of

Action brought on 27 March 2003 by Italian Republic
against Commission of the European Communities

(Case C-138/03)

(2003/C 135/19)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 27 March 2003 by the Italian Republic,
represented by Umberto Leanza, acting as Agent, assisted by
Ivo Maria Braguglia and Antonio Cingolo, Avvocati dello
Stato, with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul the memorandum of 20 January 2003 No 100629
(doc. 19), received on 21 January 2003, by which the
Commission’s Directorate General Regional Policy —
Regional intervention in France, Greece, Italy, communi-
cated its decision to deduct part of the amount requested
by way of assistance in the context of the POP ‘Ricerca,
Sviluppo Tecnologico e Alta Formazione’
(Research,
Technological development and Higher Education) 2000-
2006; the memorandum of 3 March 2003 No 102627
(doc. 21) quantifying the amount to be deducted; and all
other measures connected therewith and entailed thereby;

C 135/14

EN

Official Journal of the European Union

7.6.2003

— order the Commission of the European Communities to

pay the costs.

sale of optician’s goods,
the Hellenic Republic is
restricting the conditions of establishment of natural
persons working as opticians in breach of Article 43 EC.

Pleas in law and main arguments

The applicant claims that the contested memoranda do not
appear to have been issued as a result of one of the procedures
for making decisions exhaustively provided for by the Com-
mission’s internal rules, C(2000) 3614 of 29 November 2000,
which renders null and void the contested measures, not least
in view of their content which is of external effect.

It further claims that the contested measures were adopted by
the Commission in manifest breach of Article 32 of Regulation
EC No 1260/99 (1) and of and of Rule 1.1 and 1.2 in the annex
to Commission Regulation (EC) No 1685/2000 (2).

Finally, it claims that the decisions adopted by way of the
contested measures are invalid inasmuch as the statement of
reasons is defective and contradictory and because they
infringe the legitimate expectations of the applicant.

( 1) OJ 1999 L 161, p. 1.
( 2) OJ 2000 L 193, p. 39.

— Declare that, by enacting and maintaining in force Law
No 91/119 and Law No 2646/98 under which the
establishment by a legal person of a shop for the sale of
optician’s goods is subject to the following conditions:

— authorisation of the establishment and operation of
the shop for the sale of optician’s goods must
have been granted to a recognised optician/natural
person, the person holding the authorisation to
operate the shop must hold at least 50 % of the
company’s share capital, and must participate at
least to that extent in the profits and losses of the
company, and the company must be in the form of
a collective or limited partnership,

— the optician in question may participate at most in
one other company owning a shop for the sale of
optical articles, subject to the conditions that the
authorisation for the establishment and operation
of that shop is in the name of another authorised
optician,

the Hellenic Republic has restricted the conditions of
establishment of legal persons operating as opticians in
Greece in a manner inconsistent with Article 43 EC and
has infringed Article 48 in conjunction with Article 43 EC
by imposing on legal persons conditions not applicable to
natural persons,

Action brought on 27 March 2003 by the Commission of
the European Communities against the Hellenic Republic

— order the Hellenic Republic to pay the costs.

(Case C-140/03)

(2003/C 135/20)

An action against the European Communities was brought
before the Court of Justice on 27 March 2003 by the
Commission of the European Communities, represented by
Maria Patakia, of the legal service.

The Commission claims that the Court should:

— Declare that by enacting and maintaining in force Law
No 971/79, which does not permit a qualified optician as
a natural person to operate more than one shop for the

Pleas in Law and Main Arguments

1.

2.

3.

Restrictions on freedom of establishment for natural
persons.

Restrictions on freedom of establishment for legal per-
sons.

The abovementioned restrictions are not justified by the
grounds put forward.