Judgment of the Court (Second Chamber) of 14 April 2005 in Case C-157/03: Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directives 68/360/EEC, 73/148/EEC, 90/365/EEC and 64/221/EEC — Right of residence — Residence permit — Third-country national who is a member of the family of a Community national — Time-limit for issue of residence permit)
Date: 2005-05-28
Institutions: Court of Justice
Subjects: EU national, European Commission, Spain, action for failure to fulfil an obligation, foreign national, free movement of persons, residence permit

C 132/6

EN

Official Journal of the European Union

28.5.2005

1. Article 22(1)(a)(i) and (c)(i) of Council Regulation (EEC) No
1408/71 of 14 June 1971 on the application of social security
schemes to employed persons,
to self-employed persons and to
their families moving within the Community and
members of
Article 22(1) and (3) of Council Regulation (EEC) No 574/72 of
21 March 1972 laying down the procedure for implementing
Regulation No 1408/71, both as amended and updated by
Council Regulation (EEC) No 2001/83 of 2 June 1983, must be
interpreted as meaning that, where the competent institution has
consented, by issuing a Form E 111 or Form E 112, to one of its
insured persons receiving medical treatment in a Member State
other than the competent Member State, it is bound by the find-
ings as regards the need for urgent vitally necessary treatment
made during the period of validity of
the form by doctors
authorised by the institution of the Member State of stay, and by
the decision of those doctors, taken during that period on the basis
of those findings and the current state of medical knowledge, to
transfer the patient to a hospital establishment in another State,
even if that State is a non-member country. However, in such a
situation, in accordance with Article 22(1)(a)(i) and (c)(i) of Regu-
lation No 1408/71, the insured person's right to the benefits in
kind provided on behalf of the competent institution is subject to
the condition that, under the legislation administered by the insti-
tution of the Member State of stay, that institution is obliged to
provide persons insured with it with the benefits in kind corre-
sponding to such treatment.

In such circumstances, the competent institution is not entitled to
require the person concerned to return to the competent Member
State in order to undergo a medical examination there or to have
him examined in the Member State of stay, nor to make the above
findings and decisions subject to its approval.

establishment

in a non-member

2. Where doctors authorised by the institution of the Member State
of stay have for reasons of vital urgency and in the light of current
medical knowledge chosen to transfer the insured person to a
hospital
country, Article
22(1)(a)(i) and (c)(i) of Regulation No 1408/71 must be inter-
preted as meaning that the cost of the treatment provided in that
State must be borne by the institution of the Member State of stay
in accordance with the legislation administered by that institution,
under the same conditions as those applicable to insured persons
treatment which is
covered by that
among the benefits provided for by the legislation of the competent
Member State, it is then for the institution of that State to bear
the cost of the benefits thus provided, by reimbursing the institu-
tion of the Member State of stay under the conditions laid down
in Article 36 of Regulation No 1408/71.

legislation. In the case of

Where the cost of the treatment provided in an establishment in a
non-member country has not been assumed by the institution of
the Member State of stay, but it is established that the person
concerned was entitled to have the cost borne and the treatment is
among the benefits provided for by the legislation of the competent
Member State, it is for the competent institution to reimburse to
that person or his heirs directly the cost of that treatment, so as to

ensure a level of assumption of costs equivalent to that which that
person would have enjoyed if the provisions of Article 22(1) of
Regulation No 1408/71 had been applied.

(1) OJ C 146 of 21.06.2003.

JUDGMENT OF THE COURT

(Second Chamber)

of 14 April 2005

in Case C-157/03: Commission of the European Commu-
nities v Kingdom of Spain (1)

(Failure of a Member State to fulfil obligations — Directives
68/360/EEC, 73/148/EEC, 90/365/EEC and 64/221/EEC —
Right of residence — Residence permit — Third-country
national who is a member of the family of a Community
national — Time-limit for issue of residence permit)

(2005/C 132/11)

(Language of the case: Spanish)

In Case C-157/03, Commission of the European Communities
(Agents: C. O'Reilly and L. Escobar Guerrero) v Kingdom of
Spain (Agent: N. Díaz Abad) — action under Article 226 EC
for failure to fulfil obligations, brought on 7 April 2003 — the
Court (Second Chamber), composed of C.W.A. Timmermans,
President of
J. Makarczyk
the Chamber, C. Gulmann,
(Rapporteur), P. Kūris and J. Klučka,
Judges; C. Stix-Hackl,
Advocate General; R. Grass, Registrar, gave a judgment on 14
April 2005, in which it:

1. — Declares that, by failing to transpose correctly into its national
law Council Directive 68/360/EEC of 15 October 1968 on
the abolition of restrictions on movement and residence within
the Community for workers of Member States and their
families, Council Directive 73/148/EEC of 21 May 1973 on
the abolition of restrictions on movement and residence within
the Community for nationals of Member States with regard to
establishment and the provision of services and Council Direc-
tive 90/365/EEC of 28 June 1990 on the right of residence
for employees and self-employed persons who have ceased their
occupational activity, in particular, by requiring third-country
nationals who are members of the family of a Community
national who has exercised his right to freedom of movement
to obtain a residence visa for the issue of a residence permit,
and

28.5.2005

EN

Official Journal of the European Union

C 132/7

— by failing,

in breach of the provisions of Council Directive
64/221/EEC of 25 February 1964 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, to issue a residence
permit as soon as possible and in any event not later than six
months from the date on which the application for that permit
was submitted,

1. Declares that the application is inadmissible;

2. Orders the Kingdom of Spain to pay the costs;

3. Orders the Republic of Finland to bear its own costs.

the Kingdom of Spain has failed to fulfil its obligations under
those directives;

(1) OJ C 146 of 21.6.2003.

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

(1) OJ C 135 of 07.06.2003.

JUDGMENT OF THE COURT

(First Chamber)

of 17 March 2005

in Case C-170/03 (reference for a preliminary ruling from
the Hoge Raad der Nederlanden): Staatssecretaris van
Financiën v J.H.M. Feron (1)

(Regulation (EEC) No 918/83 — Relief from customs duties
— Meaning of ‘personal property’ and ‘possession’ — Motor
vehicle made available to a person by his employer)

(2005/C 132/13)

(Language of the case: Dutch)

In Case C-170/03: reference for a preliminary ruling under
Article 234 EC from the Hoge Raad der Nederlanden (Nether-
lands), made by decision of 11 April 2003, received at the
Court on 14 April 2003, in the proceedings pending before
that court between Staatssecretaris van Financiën and J.H.M.
Feron — the Court (First Chamber), composed of P. Jann, Presi-
the Chamber, A. Rosas, K. Lenaerts, S. von Bahr
dent of
(Rapporteur) and K. Schiemann,
Judges; M. Poiares Maduro,
Advocate General; M.-F. Contet, Principal Administrator, for
the Registrar, gave a judgment on 17 March 2005, the opera-
tive part of which is as follows:

A car such as that at issue in the main proceedings is to be regarded
as personal property within the meaning of Article 1(2)(c) of Council
Regulation (EEC) No 918/83 of 28 March 1983 setting up a Com-
munity system of reliefs from customs duty and thus eligible for relief
from import duty under Articles 2 and 3 of the regulation.

(1) OJ C 146 of 21.06.2003.

JUDGMENT OF THE COURT

(Grand Chamber)

of 15 March 2005

in Case C-160/03: Kingdom of Spain v Eurojust (1)

(Action for annulment under Article 230 EC — Action
brought by a Member State challenging calls for applications,
issued by Eurojust, for positions as members of the temporary
staff — No jurisdiction of the Court — Inadmissible)

(2005/C 132/12)

(Language of the case: Spanish)

In Case C-160/03: Kingdom of Spain (Agent: L. Fraguas
Gadea), supported by Republic of Finland (Agent: T. Pynnäv) v
Eurojust (Agent: J. Rivas de Andrés and D. O'Keeffe) — action
for annulment under Article 230 EC, brought on 8 April 2004
— the Court (Grand Chamber), composed of V. Skouris, Presi-
dent, P. Jann, C.W.A. Timmermans, A. Rosas (Rapporteur) and
A. Borg Barthet, Presidents of Chambers, R. Schintgen, N.
Juhász, G.
Colneric, S. von Bahr,
Arestis, M. Ilešič and J. Malenovský, Judges; M. Poiares Maduro,
Advocate General; H. von Holstein, Deputy Registrar, for the
Registrar, gave a judgment on 15 March 2005, in which it:

J.N. Cunha Rodrigues, E.