Case C-386/03: Action brought on 12 September 2003 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2003-11-01
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, airport, competition, ground handling, market access, provision of services

1.11.2003

EN

Official Journal of the European Union

C 264/23

Action brought on 10 September 2003 by the Com-
mission of the European Communities against the Italian
Republic

(Case C-381/03)

(2003/C 264/38)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 10 Septem-
ber 2003 by the Commission of the European Communities,
represented by K. Banks and K. Simonsson, acting as Agents.

The applicant claims that the Court should:

— find that, by failing to adopt

the laws, regulations
and administrative provisions necessary to comply with
Commission Directive 2001/53/EC of 10 July 2001
amending Council Directive 96/98/EC on marine equip-
ment (1) or, in any event, by failing to communicate the
same to the Commission, the Italian Republic has failed
to fulfil its obligations under that directive;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The time-limit for transposing the directive expired on 17 Feb-
ruary 2002.

(1) OJ L 204 of 28.7.2001, p. 1.

Action brought on 12 September 2003 by the Com-
the
mission of

the European Communities against

Kingdom of Spain

(Case C-384/03)

(2003/C 264/39)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 12 Sep-
tember 2003 by the Commission of the European Communi-
ties, represented by D. Gregorio Valero Jordana, with an
address for service in Luxembourg.

The Commission claims that the Court should:

— declare that, by failing to adopt all the laws, regulations
and administrative provisions necessary to implement
Directive 2000/35/EC of the European Parliament and of
the Council of 29 June 2000 on combating late payment
in commercial transactions (1) or, in any event, by failing
to communicate such provisions to the Commission, the
Kingdom of Spain has failed to fulfil its obligations under
that directive;

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The time allowed for transposing the directive expired on
8 August 2002.

(1) OJ L 200 of 8.8.2000, p. 35.

Action brought on 12 September 2003 by the Com-
mission of the European Communities against the Federal
Republic of Germany

(Case C-386/03)

(2003/C 264/40)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
the
ties on 12 September 2003 by the Commission of
European Communities, represented by M. Huttunen and
M. Niejahr of its Legal Service, with an address for service in
Luxembourg.

The Commission of the European Communities claims that
the Court should:

1.

Flugplätzen

(German Regulation

declare that by adopting measures in Paragraphs 8(2) and
9(3) of the Verordnung über Bodenabfertigungsdienste
auf
concerning
groundhandling services at airports) of 10 December
1997 which are not compatible with Articles 16 and 18
of Council Directive 96/67/EC of 15 October 1996 on
access to the groundhandling market at Community
airports (1), the Federal Republic of Germany has failed to
fulfil its obligations under that directive;

2.

order the Federal Republic of Germany to pay the costs
of the proceedings.

C 264/24

EN

Official Journal of the European Union

1.11.2003

Pleas in law and main arguments

Under Article 18 of Directive 96/67/EC the Member States are
entitled to take measures to protect the rights of workers.
However, such measures must be without prejudice to the
application of that directive, and subject to the other provisions
of Community law. Although Council Directive 2001/23/EC
of 12 March 2001 on the approximation of the laws of the
Member States relating to the safeguarding of employees’
rights in the event of transfers of undertakings, businesses or
parts of undertakings or businesses (2) does not apply in cases
where only a specific share of the market is ‘transferred’ to
another undertaking as part of an opening-up of the market,
Paragraph 8(2) of the Verordnung über Bodenabfertigungs-
dienste auf Flugplätzen (BADV) authorises the managing body
of an airport to impose a general obligation on new bidders to
take on airport staff, as part of the standard terms for tender
and selection procedures, irrespective of whether there has
been a transfer for the purposes of Directive 2001/23/EC. The
clear effect of Paragraph 8(2) of the BADV is therefore to deter
new undertakings from entering the market and to impede
their competitiveness, thereby reducing the benefits of liberalis-
ation as regards reduction of prices and improvement in the
quality of services.

Furthermore, Paragraph 9(3) of the BADV permits the manag-
ing body of an airport to charge higher fees for access to
airport installations in cases where suppliers and selfhandlers
do not take on any staff from the airport operator upon
entering the market. That provision infringes Article 16(3) of
Directive 96/67/EC which provides that the fee for access to
airport installations is to be determined according to relevant,
objective, transparent and non-discriminatory criteria. The
failure to take on airport staff is not a criterion which meets
any of those requirements. Rather, that provision even enables
the airport operator to charge selfhandlers or suppliers of
services a higher fee for access to airport installations if they
do not take on its staff, and thereby makes it possible for the
airport to discriminate against its direct competitors.

(1) OJ 1996 L 272, p. 36.
(2) OJ 2001 L 82, p. 16.

Communities on 15 September 2003 by the Hellenic Republic,
represented by I. Khalkias and E. Svolopoulou, Members of the
State Legal Service, with an address for service in Luxembourg
at the Greek Embassy, 27 rue Marie-Adelaïde.

The applicant asks the Court to:

— annul Commission Decision C(2003)2587 excluding
from Community financing certain expenditure incurred
by the Member States under the EAGGF — Guarantee
Section,
in so far as concerns financial corrections
chargeable to the Hellenic Republic in the wine, livestock
premiums and olive oil sectors for the year 1999-2000.

Pleas in law and main arguments

1.

Infringement of law and of general principles.

Infringement of the principle of proportionality —

2.
misuse of discretion.

Error as to the facts, misassessment of

3.
the factual
circumstances, inadequate statement of reasons for the contest-
ed decision.

4. Misinterpretation and misapplication of Article 5(2)(c) of
Regulation No 729/70.

Action brought on 16 September 2003 by the Com-
mission of the European Communities against the Italian
Republic

Action brought on 15 September 2003 by the Hellenic
Republic against the Commission of the European Com-
munities

(Case C-387/03)

(2003/C 264/41)

(Case C-392/03)

(2003/C 264/42)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 16 Septem-
ber 2003 by the Commission of the European Communities,
represented by A. Bordes and L. Visaggio, acting as Agents.