Case C-313/03: Action brought on 23 July 2003 by the Commission of the European Communities against the Italian Republic
Date: 2003-09-20
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, arrangement of working time, crew

20.9.2003

EN

Official Journal of the European Union

C 226/9

Action brought on 18 July 2003 by the Italian Republic
against Commission of the European Communities

(Case C-307/03)

(2003/C 226/13)

the Commission of

An action against
the European
Communities was brought before the Court of Justice of the
European Communities on 18 July 2003 by the Italian
Republic, represented by Ivo M. Braguglia, acting as Agent,
assisted by Maurizio Fiorilli, Avvocato dello Stato.

The applicant claims that the Court should:

— Annul the financial correction imposed against Italy by
Commission Decision No C(2003) 1539 final of 15 May
2003.

Pleas in law and main arguments

First, the applicant claims that the spot checks were of poor
it disagrees with the findings of the Commission's
quality:
officials as regards the procedure and effectiveness of
the
checks carried out.

As regards failure to repay aid in respect of non-eligible areas,
the applicant maintains that financial corrections may not be
made where the Member State has kept to measures agreed
with the Commission and improved checking procedures, as
admitted by the Commission and as shown by the fact that it is
sought to confer retroactive effectiveness to the scope of check-
ing procedures which have been gradually improved.

1. Where the period for calculation of the basis of contribu-
tion for unemployment benefit coincided with exercise of
the right to reduced working hours and salary in order to
care for a child, does the correct transposition of clause 2
(8) of the framework agreement contained in Directive
96/34 (1) into the domestic law of Member States, and
specifically into Spanish law, require those States to adopt
in social security legislation relating specifically to unem-
ployment benefit measures to offset the effect of the lower
contribution to the social security scheme as a result of the
reduced salary received by a worker exercising that right,
so as not to cause the worker's unemployment benefit to
be reduced?

2.

Should the preceding question be answered affirmatively,

Can failure to comply with the duty under clause 2(8) of
the framework agreement contained in Directive 96/34,
once the time-limit established in Article 2 of the Directive
for its transposition has expired, be remedied directly by
the national court in the proceedings in which these
preliminary questions are raised, in the decision adopted
to determine those proceedings?

(1) Council Directive 96/34/EC of 3 June 1996 on the framework
agreement on parental leave concluded by UNICE, CEEP and the
ETUC (OJ L 145 of 19.6.1996, p. 4).

Finally, the applicant maintains that the contested decision is
vitiated by misapplication of Article 9(3) of Regulation
No 3887/92 (1) (areas to be used for calculation of the aid).

Action brought on 23 July 2003 by the Commission of the
European Communities against the Italian Republic

(1) OJ L 391, 31.12.1992, p. 36.

Reference for a preliminary ruling by the Juzgado de lo
Social No 33 by order of that Court of 8 July 2003 in the
case of Ana Isabel López Gil against Instituto Nacional de
Empleo (Inem)

(Case C-309/03)

(2003/C 226/14)

Reference has been made to the Court of
the
European Communities by order of the Juzgado de lo Social
(Social Court) No 33 of 8 July 2003, received at the Court
Registry on 23 July 2003, for a preliminary ruling in the case of
Ana Isabel López Gil against Instituto Nacional de Empleo
(Inem) on the following questions:

Justice of

(Case C-313/03)

(2003/C 226/15)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 23 July 2003
by the Commission of the European Communities, represented
by M.-J. Jonczy, acting as Agent.

The applicant claims that the Court should:

— find that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Council
Directive 1999/63/EC (1) of 21 June 1999 concerning the
Agreement on the organisation of working time of seafarers
concluded by the European Community Shipowners"
Association (ECSA) and the Federation of Transport
Workers" Unions in the European Union (FST) — Annex:
European Agreement on the organisation of working time of
seafarers, or in any event, by failing to communicate any
such provisions to the Commission, the Italian Republic has
failed to satisfy its obligations under Article 3(1) of that
directive;

C 226/10

EN

Official Journal of the European Union

20.9.2003

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The time-limit
30 June 2002.

for implementing the directive expired on

(1) OJ L 167 of 2.7.1999, p. 33.

Reference for a preliminary ruling by the Tribunal
Administratif de Paris by judgment of that Court of
3 July 2003 in the case of Serge Briheche against
Minister for the Interior, Internal Security and Local
Freedoms

(Case C-319/03)

(2003/C 226/16)

Reference has been made to the Court of
Justice of
the
the Tribunal
judgment of
European Communities by
Administratif de Paris (Administrative Court, Paris) of 3 July
2003, received at the Court Registry on 24 July 2003, for a
preliminary ruling in the case of Serge Briheche against Minister
for the Interior, Internal Security and Local Freedoms on the
following question:

Does Directive 76/207/EEC of 9 February 1976 (1) preclude
France from maintaining in force the provisions of Article 8 of
Law No 75-3 of 3 January 1975, as amended by Law
No 79-569 of 7 July 1979 and Law No 2001-397 of 9 May
2001, concerning widows who have not remarried?

(1) Council Directive 76/207/EEC of 9 February 1976 on the imple-
mentation of the principle of equal treatment for men and women
as regards access to employment, vocational training and promo-
tion, and working conditions (OJ L 39, 14.2.1976, p. 40).

Action brought on 24 July 2003 by the Commission of the
European Communities against the Republic of Austria

(Case C-320/03)

(2003/C 226/17)

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 24 July
the European Communities,
2003 by the Commission of

represented by Claudia Schmidt of the Commission's Legal
Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

1. Rule that the imposition of a ban on the use of a section of
the A 12 Inntal motorway between kilometre 20,359 in
the Kundl local authority area and kilometre 66,780 in the
Ampass local authority area by heavy goods vehicles with a
total weight exceeding 7,5 tonnes which carry certain
goods is incompatible with the Republic of Austria's obli-
gations under Articles 1 and 3 of Council Regulation (EEC)
No 881/92 (1), Articles 1 and 6 of Council Regulation
(EEC) No 3118/93 (2) and Articles 28 EC to 30 EC;

2. Order the Republic of Austria to pay the costs of the

proceedings.

Pleas in law and main arguments

On 27 May 2003, the First Minister of the Land of Tyrol imposed,
on the basis of the Austrian Immissionsschutzgesetz — Luft
(Immission Control Act — air), a ban on the use by heavy
goods vehicles carrying certain goods of a 46 km stretch of the
A 12 Inntal motorway. This absolute ban applies to the vehicles
covered with immediate effect from 1 August 2003 for an inde-
finite period.

The Commission takes the view that, in imposing this ban, the
Republic of Austria has acted in breach of the abovementioned
obligations of primary and secondary law.

The transit ban or the ‘pressure to use railways’ creates addi-
tional delays and costs for the heavy goods vehicles and under-
takings concerned. The ban thus constitutes a manifest obstacle
to the free movement of goods. The approach chosen by the
Republic of Austria in applying the ban only to transit traffic,
approximately 80 % of which is effected by foreign hauliers,
thus entails preferential treatment of the national/local move-
ment of goods or, in other words, indirect discrimination of the
transport of goods by foreign carriers. That discrimination
cannot be justified on the ground of environmental protection.
For that reason alone, it must be found that the Republic of
Austria has infringed Article 28 EC.

The Commission argues alternatively that, even if the measure
is not discriminatory, the argument based on protection of the
environment cannot be accepted because the Austrian measure
does not meet the requirements of the principle of proportion-
ality. There are less stringent measures, that is to say, measures
which appear equally suitable to achieve the aim sought but
which present less of an obstacle to the free movement of
goods. Since it cannot be justified on the grounds of environ-
mental protection, the measure ultimately infringes Article 28 EC.

It is clear from Regulation (EEC) No 881/92 and Regulation
(EEC) No 3118/93 that, in principle, conditions for the free
circulation of goods transport other than those laid down in
those regulations are impermissible. There is no exception
limiting the scope of that principle. There has thus been a