Case C-503/03: Action brought on 27 November 2003 by the Commission of the European Communities against the Kingdom of Spain
Date: 2004-01-24
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, admission of aliens

C 21/26

EN

Official Journal of the European Union

24.1.2004

The applicant claims that the Court should:

The Commission claims that the Court should:

— Declare that, by approving Order No 783/98 without
notifying it at the draft stage, the Portuguese Republic has
failed to fulfil its obligations under Article 8 of Directive
98/34/EC (1) of the European Parliament and of the
Council of 22 June 1998 laying down a procedure for
the provision of information in the field of technical
standards and regulations, in the version in force at the
material time;

— Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

Article 2 of the Regulamento da Navegação em Albufeiras
(Waterway Navigation Regulations)
(Order No 783/98 of
19 September 1998) contains technical regulations within the
meaning of Community law. It is a regulatory measure adopted
by the Government of the Portuguese Republic which is de jure
mandatory and which lays down the technical characteristics
(dimensions and power) which pleasure craft must observe in
order to be used in Portugal for pleasure navigation in public
waterways in Portugal, the only exception being the waterways
in the Douro River. The article thus manifestly applies to
Portugal or, at least, to a major part of it. Accordingly, the
Portuguese Republic ought, pursuant to Article 8(1) of Direc-
tive 98/34/EC, to have forwarded to the Commission the draft
legislative measure which was adopted by the Portuguese
Government as Order No 783/98.

(1) OJ L 204 of 21.7.1998, p. 37.

1. Declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Directive 2001/12/EC (1) of the European Parliament and
of the Council of 26 February 2001 amending Council
Directive 91/440/EEC (2) on the development of
the
Community’s railways, Directive 2001/13/EC (3) of the
European Parliament and of the Council of 26 February
2001 amending Council Directive 95/18/EC (4) on the
licensing of railway undertakings and Directive 2001/14/
EC (5) of the European Parliament and of the Council
of 26 February 2001 on the allocation of railway
infrastructure capacity and the levying of charges for the
use of railway infrastructure and safety certification and,
in any event, by not having communicated them to the
Commission, the Kingdom of Sweden has failed to fulfil
its obligations thereunder; and

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

Pleas in law and main arguments

The time-limit for transposition of the directives expired on
15 March 2003.

(1) OJ 2001 L 75, p. 1.
(2) Of 29 July 1991 (OJ 1991 L 237, p. 1).
(3) OJ 2001 L 75, p. 26.
(4) Of 19 June 1995 (OJ 1995 L 143, p. 70).
(5) OJ 2001 L 75, p. 29.

Action brought on 26 November 2003 by the Com-
the
mission of

the European Communities against

Kingdom of Sweden

Action brought on 27 November 2003 by the Com-
the
mission of

the European Communities against

Kingdom of Spain

(Case C-501/03)

(2004/C 21/48)

(Case C-503/03)

(2004/C 21/49)

the Kingdom of Sweden was brought
An action against
before the Court of Justice of the European Communities on
26 November 2003 by the Commission of the European
Communities, represented by W. Wils and K. Simonsson,
acting as Agents, 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 27 No-
vember 2003 by the Commission of the European Communi-
ties, represented by Carmel O’Reilly and Luis Escobar Guerrero,
acting as Agents, with an address for service in Luxembourg.

24.1.2004

EN

Official Journal of the European Union

C 21/27

The applicant claims that the Court should:

1. Declare that (i) by rejecting a visa application for the
entry into Spanish territory of two persons, both nationals
of third countries (or of non-member countries), who are
members of a family of citizens of the European Union,
on the sole ground that they are included in the national
reporting list in the Schengen Information System of
persons not to be permitted entry (at the request of a
Member State) and, (ii) for failing to give adequate reasons
for the refusal of the visa applications and entry, the
Kingdom of Spain has failed to fulfil its obligations under
Articles 1, 2, 3 and 6 of 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;

they are covered by Community law,

The Spanish authorities have failed to fulfil the obligations
deriving from Directive 64/221/EEC since, having established
that the persons concerned are included in the SIS reporting
list and that
they
concluded automatically, and without carrying out an individ-
ual assessment, that entry into Spanish territory and the visa
application had to be refused, and failed to carry out the
necessary checks to ascertain whether that inclusion in the
reporting list was well-founded as regards the requirements of
Community law.

(1) OJ, English Special Edition Series I, Chapter 1963-1964, p. 117.

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

Action brought on 27 November 2003 by the Com-
mission of the European Communities against the French
Republic

Pleas in law and main arguments

(Case C-504/03)

(2004/C 21/50)

the

constitutes

64/221/EEC

Directive
Community
implementing legislation on the movement and residence (for
persons covered by Community law or citizens of a non-
member country who are members of a family of Community
citizens); it precludes the inclusion of those persons in the
national reporting list of citizens not to be permitted entry
pursuant to Article 96 of the Convention implementing the
Schengen Agreement, since the result of inclusion is as a rule
that all the Member States which apply the Schengen acquis
must refuse the person concerned entry to their territory.

Access by a citizen of the Union or of a third country who is a
family member of a Community citizen to the territory of a
Member State may be refused entry on grounds of public
policy only when the person concerned represents a present,
genuine and sufficiently serious threat, affecting a fundamental
interest of society. Facts constituting a threat to public policy
within the usual Community law meaning (Directive 64/221/
EEC) cannot be treated in the same way as facts constituting
such a threat within the meaning of Article 96(2) of the
Convention implementing the Schengen Agreement. In the
present case, the inclusion in the Schengen Information System
(SIS) at the request of Germany cannot constitute on its own a
sufficient indication of a genuine and serious threat to public
policy, given that on one hand the grounds for that inclusion
are not known, and on the other hand the parties concerned
legally reside in the territory of a Member State, which
constitutes evidence that there is no threat of that kind.

An action against the French Republic was brought before the
Court of Justice of the European Communities on 27 Novem-
ber 2003 by the Commission of the European Communities,
represented by J.-P. Keppenne and V. Di Bucci, acting as
Agents, with an address for service in Luxembourg.

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

1.

declare that, by failing to bring into force within the
period prescribed for that purpose the measures necessary
to ensure reimbursement by Bull of the cash advance,
in accordance with Commission
including interest,
Decision 2003/599/EC concerning the cash advance
granted by France to Bull
(notified under document
number C(2002) 4366) (1), the French Republic has failed
to fulfil its obligations under the fourth paragraph of
Article 249 EC and Articles 2 and 3 of the decision;

2.

order the French Republic to pay the costs.

Pleas in law and main arguments

The French Republic has not taken any measures to comply
with the decision of 13 November 2002 and has not informed
the Commission in due time of any proposals for alternative
measures.