Case C-209/05: Action brought on 13 May 2005 by the Commission of the European Communities against the Republic of Austria
Date: 2005-07-09
Institutions: Court of Justice
Subjects: Austria, EU national, European Commission, action for failure to fulfil an obligation, admission of aliens, appeal, disclosure of information, family, public safety, third country

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.

9.7.2005

EN

Official Journal of the European Union

C 171/11

Paragraph 94(2) of the Austrian Fremdengesetz does not allow
for appeals against refusals or declarations of invalidity of visas.
This provision infringes the obligation under Article 8 of the
directive, according to which the person concerned must have
the same legal remedies as are available to nationals of the
State concerned in respect of acts of the administration, regard-
less of whether these are remedies submitted to administrative
authorities or the courts. The Commission considers incorrect
the Republic of Austria's arguments that the refusal of legal
remedies in this connection is justified by the fact that neither
refusals nor declarations of invalidity of visas have any conse-
quential effect beyond the individual act in question and that
submitting a new application is a quicker means of reaching
one's goal than pursuing a legal remedy against the decision.
Submitting a renewed application entails the risk that
the
objectively incorrect decision may simply be repeated.

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

Action brought on 20 May 2005 by the Commission of
the Republic of
the European Communities against

Austria

(Case C-226/05)

(2005/C 171/19)

(Language of the case: German)

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 20 May
2005 by the Commission of the European Communities, repre-
sented by Dr Bernhard Schima, acting as Agent with an address
for service in Luxembourg.

The Commission claims that the Court should:

— contrary to Article 24(1), it has failed to enact any provi-
sions to implement the directive as regards the Federal
Government's law on mineral raw materials, its law on
blasting supplies and explosives and the law of the Land
of Salzburg relating to electricity production;

— it has failed to implement Article 11 as regards external
emergency plans in the Länder of Burgenland, Salzburg,
Styria and Tyrol;

— it has failed to implement Article 12 of the directive in

the Land of Upper Austria;

— it has failed to implement Article 8(2)(b) of the directive
in the Länder of Burgenland, Upper Austria, Salzburg,
Tyrol and Vorarlberg;

or that the Republic of Austria has failed to inform the
Commission of any implementing measures in all
these
instances;

2. order the Republic of Austria to pay the costs.

Pleas in law and main arguments:

According to Article 24(1) of Council Directive 96/82/EC of 9
December 1996 on the control of major-accident hazards
involving dangerous substances, the directive should be imple-
mented in national law by the Member States not later than 24
months after its entry into force, that is to say, by 3 February
1999. The implementation of the directive in Austria rests
partly with the Federal Government and partly with the Länder.

The Commission is of the opinion that the implementation of
the directive in the Republic of Austria is incomplete or insuffi-
cient: there are gaps as regards implementation in areas of
importance and the implementing measures partly fall short of
the requirements of the directive.

At the Federal law level, implementation in the areas of the law
on mineral raw materials and the law on blasting supplies and
explosives is still outstanding. At the level of the Länder, imple-
mentation of the directive in the area of the Salzburg law
relating to electricity production is still outstanding.

1. declare that the Republic of Austria has failed to fulfil its
obligation to completely implement Council Directive
96/82/EC of 9 December 1996 on the control of major-
accident hazards involving dangerous substances (1) in that

Article 11(1) of the directive — the drawing up of an external
emergency plan for measures to be taken outside the establish-
ment — has not been implemented in the Länder of Burgen-
land, Salzburg, Styria and Tyrol.