Case C-208/05: Reference for a preliminary ruling from the Sozialgericht Berlin by order of that court of 11 April 2005 in ITC Innovative Technology Center GmbH v Bundesagentur für Arbeit
Date: 2005-07-09
Institutions: Court of Justice
Subjects: Germany, free movement of workers, freedom to provide services, infringement of EU law, interpretation of the law, social security, social-security contribution, worker (EU)

9.7.2005

EN

Official Journal of the European Union

C 171/9

Action brought on 10 May 2005 by the Commission of
the Kingdom of
the European Communities against

Belgium

Reference for a preliminary ruling from the Sozialgericht
Berlin by order of that court of 11 April 2005 in ITC Inno-
vative Technology Center GmbH v Bundesagentur für
Arbeit

(Case C-204/05)

(2005/C 171/16)

(Language of the case: French)

An action against the Kingdom of Belgium was brought before
the Court of Justice of the European Communities on 10 May
2005 by the Commission of the European Communities, repre-
sented by B. Stromsky and F. Simonetti, acting as Agents, with
an address for service in Luxembourg.

The Commission claims that the Court should:

1. declare that; the Kingdom of Belgium has failed to fulfil its
obligations under Articles 28 and 30 of the EC Treaty, by
requiring Class 1 distributors of medical equipment, estab-
lished in other States of the Community, to be approved in
Belgium and, by requiring doctors, psychologists, parame-
dical staff and social workers, in so far as they are attached
to a specialist centre, to obtain supplies of sterile material
from pharmacists, distributors, wholesaler trader, importers
and manufacturers approved by the Belgian Ministry of
Public Health;

2. order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Commission challenges the legislation in force in Belgium,
which requires distributors to be approved where they wish to
sell sterile material bearing the EC marking to doctors, nurses,
psychologists, paramedical staff or social workers. That obliga-
tion is imposed indiscriminately on distributors established in
Belgium or in another Member State. However, it impedes the
sale of medical equipment to that specific public by distributors
established outside Belgium.

(Case C-208/05)

(2005/C 171/17)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Sozialgericht Berlin
(Germany) of 11 April 2005, received at the Court Registry on
12 May 2005, for a preliminary ruling in the proceedings
between ITC Innovative Technology Center GmbH and Bunde-
sagentur für Arbeit on the following questions:

1. To what extent are rules of Community law protecting
freedom of movement, particularly Articles 18 EC and 39
EC and Articles 3 and 7 of Regulation (EEC) No 1612/68, (1)
infringed by an interpretation of the second sentence of
paragraph 421(g)(1) of Book III of the Sozialgesetzbuch-
Arbeitsförderung (Social Law Code provisions on the
promotion of employment)
that
employment covered by compulsory social security means
only employment that comes within the scope of applica-
tion of the Sozialgesetzbuch?

to the effect

('SGB III')

2. a) To what extent is it possible and necessary to interpret
the provision in conformity with European law so as to
avoid an infringement as described in Question 1?

b) If an interpretation in conformity with Community law
should not be possible or necessary, to what extent does
the second sentence of paragraph 421(g)(1) of SGB III
infringe rules of Community law protecting freedom of
movement?

C 171/10

EN

Official Journal of the European Union

9.7.2005

3. To what extent are rules of Community law protecting
competition and freedom to provide services, particularly
Articles 49 EC, 50 EC and 87 EC in conjunction with Arti-
cles 81 EC, 85 EC and 86 EC, or other rules of Community
law, infringed by an interpretation of the second sentence of
paragraph 421(g)(1) of SGB III to the effect that employ-
ment covered by compulsory social security means only
employment that comes within the scope of application of
the Sozialgesetzbuch?

— by not granting the parties concerned the same legal
remedies in respect of the decisions rejecting their visa
applications as are available to nationals of the State
concerned in respect of acts of the administration,

the Republic of Austria has failed to fulfil its obligations
under Articles 6 and 8 of Directive 64/221/EEC; (1)

4. a) To what extent is it possible and necessary to interpret
the provision in conformity with European law so as to
avoid an infringement as described in Question 3?

(b) order the defendant, the Republic of Austria, to pay the

costs of the proceedings.

b) If an interpretation in conformity with Community law
should not be possible or necessary, to what extent does
the second sentence of paragraph 421(g)(1) of SGB III
infringe Community law inasmuch as the free movement
of workers is not protected?

Pleas in law and main arguments

(1) OJ, English Special 1968(II), p. 475.

Action brought on 13 May 2005 by the Commission of
the Republic of
the European Communities against

Austria

(Case C-209/05)

(2005/C 171/18)

(Language of the case: German)

Directive 64/221/EEC imposes various obligations on the
Member States in relation to the measures adopted, for persons
falling within their personal scope, on the grounds of public
policy, public security or public health, in particular as regards
the reasons on which decisions are based and legal remedies
available against decisions. Pursuant to Article 6 of the directive
the person concerned is to be informed of the grounds of
public policy, public security, or public health upon which the
refusal to issue a visa to a member of the family of a citizen of
the Union is based. Article 8 of the directive stipulates that the
person whose visa application was rejected must have at least
the same legal remedies against the decision as are available to
nationals of the State concerned in respect of acts of the admin-
istration.

The Commission is of the view that certain provisions of the
Austrian Fremdengesetz (Law on Aliens) do not correspond to
the aforementioned Community law requirements contained in
the directive.

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 13 May
2005 by the Commission of the European Communities, repre-
sented by Maria Condou and Wolfgang Bogensberger, acting as
Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

(a) declare that, when rejecting visa applications in relation to
nationals of
the
families of citizens of the Union exercising their right to
freedom of movement,

third countries who are members of

— by not stating precise, sufficiently detailed and complete
reasons, even though there are no public security
grounds preventing their disclosure, and

the directive, however,

Pursuant to Paragraph 93(2) of the Fremdengesetz, a written
decision is to be given only on application in writing or by
protocol by the party concerned and it is sufficient, in the state-
ment of reasons of the decision, to state only the relevant legal
the
provisions. Under Article 6 of
Member States are under an automatic duty to state reasons:
the stating of reasons may not be dependant on urgency, nor
on the applications of the person concerned. The mere indica-
furthermore,
tion of the legal provisions applied does not,
satisfy the requirements demanded of a statement of reasons:
mere reference to the legal provisions applied in reaching a
negative decision does not amount to adequate information on
the grounds of rejection. The Court's case-law also shows that a
precise, sufficiently detailed and complete statement of reasons
for a decision is required so that the person concerned can
challenge the decision made against him and protect his inter-
ests accordingly.