Case C-392/03: Action brought on 16 September 2003 by the Commission of the European Communities against the Italian Republic
Date: 2003-11-01
Institutions: Court of Justice
Subjects: European Commission, European standard, Italy, action for failure to fulfil an obligation, laying poultry, livestock farming, protection of animals

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.

1.11.2003

EN

Official Journal of the European Union

C 264/25

The applicant claims that the Court should:

— order the Commission to pay the costs.

— find that, by failing to adopt

the laws, regulations
and administrative provisions necessary to comply with
Council Directive 1999/74/EC of 19 July 1999 laying
down minimum standards for the protection of laying
hens (1) or, in any event, by failing to communicate the
same to the Commission, the Italian Republic has failed
to fulfil
that
directive;

its obligations under Article 13(1) of

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The time-limit for transposing the directive expired on 1 Janu-
ary 2002.

(1) OJ L 203 of 3.8.1999, p. 53.

Action brought on 18 September 2003 by the Republic
of Austria against the Commission of the European
Communities

(Case C-393/03)

(2003/C 264/43)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 18 September 2003 (fax: 11.9.03) by the
Republic of Austria, represented by Dr Harald Dossi of the
Constitutional Service of the Federal Chancellor’s Office of the
Republic of Austria, with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul the negative opinion of the Commission of 1 July
2003 definitively refusing the request for action submit-
ted to the Commission by the Republic of Austria under
the second paragraph of Article 232 EC;

— order the Commission to pay the costs.

In the alternative, the Republic of Austria claims that the Court
should:

— annul the Commission’s decision of 1 July 2003 ordering
the non-application of Article 11(2)(c) of Protocol No 9
to the 1994 Act of Accession (1) and the full award of
ecopoints for the year 2003;

Pleas in law and main arguments

(Main application)

Infringement of the EC Treaty and/or of Protocol No 9 to the
1994 Act of Accession by definitively refusing the request
made under the second paragraph of Article 232 EC. The
Commission wrongly seeks to deduct from the number of
transit journeys declared overall for the year 2002 (1 718 622)
journeys declared as transit journeys in respect of which there
is no information on departure (69 433), journeys declared as
transit journeys where both entry and departure were effected
at the same border point (52 642) and journeys involving
‘piggyback transportation’ (7 812).

The ecopoint system under Protocol No 9 to the 1994 Act of
Accession is based on the principle of declarations. Accord-
ingly, if journeys are clearly declared by a driver as transit
journeys, they are included within the ecopoint statistics and
are relevant to the question whether the 108 % threshold has
been exceeded, whereupon the Commission is bound under
Article 11(2)(c) of Protocol No 9, in conjunction with para-
graph 3 of Annex 5 thereto, to adopt appropriate measures,
namely to reduce the number of ecopoints for the following
year in accordance with a calculation method laid down in the
Annex to the Protocol. It cannot, in the light of the principle
of declarations, be for the Republic of Austria, either legally or
factually, to provide evidence in each individual case that,
where a journey is clearly declared to be a transit journey, such
a transit journey actually took place. The Republic of Austria
merely has to deduct journeys declared to be transit journeys
where it is beyond doubt that, despite a clear declaration, there
cannot have been a transit journey. It clearly follows, therefore,
that the 108 % threshold was exceeded in 2002. In the light of
its decision of 1 July 2003, the Commission consequently
failed to fulfil its obligations under Protocol 9 to the 1994 Act
of Accession, in particular its obligations under Article 11(2)(c)
in conjunction with Article 16 and paragraph 3 of Annex 5 to
that Protocol, thereby creating grounds for annulment on
account of infringement of the EC Treaty and/or of Protocol
No 9 to the 1994 Act of Accession pursuant to the second
paragraph of Article 230 EC.

(In the alternative)

Infringement of the EC Treaty and/or of Protocol No 9 to the
the
1994 Act of Accession.
applicant refers to its arguments regarding the first plea in law.

In relation to the grounds,

(1) Protocol No 9 on road, rail and combined transport in Austria.