Case C-393/05: Action brought on  4 November 2005  by the Commission of the European Communities against the Republic of Austria
Date: 2006-01-14
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, freedom to provide services, health control, organic farming, private sector, right of establishment

14.1.2006

EN

Official Journal of the European Union

C 10/13

Reference for a preliminary ruling from the Simvoulio tis
Epikratias (Council of State) by judgment of that court of
30 June 2005 in proceedings between Georgios Alevizos
and the Minister for Economic Affairs

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

(Case C-392/05)

(2006/C 10/25)

(Language of the case: Greek)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Simvoulio tis Epikratias of
30 June 2005, received at the Court Registry on 31 October
2005, for a preliminary ruling in the proceedings between
Georgios Alevizos and Minister for Economic Affairs on the
following question:

Are civil servants and officers, non-commissioned officers and
other ranks of the armed forces, the public security forces and
the harbour police corps covered, like other workers, by Article
6 of Council Directive 83/183/EEC and capable of acquiring
‘normal residence’
in another country where they live for at
least 185 days in each calendar year in order to carry out an
official task of a definite duration, or do they continue, even
during the period of their assignment in the other country, to
have their normal residence in Greece, irrespective of whether
they have transferred their personal and occupational ties to
the other country?

Action brought on 4 November 2005 by the Commission
of the European Communities against the Republic of
Austria

(Case C-393/05)

(2006/C 10/26)

(Language of the case: German)

Justice of

An action against the Republic of Austria was brought before
the European Communities on 4
the Court of
November 2005 by the Commission of the European Commu-
nities, represented by Enrico Traversa and Gerald Braun, acting
as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

1. declare that the Republic of Austria has failed to fulfil it
obligations under Article 49 EC in requiring that private
inspection bodies in the field of organic production of agri-
cultural products, which have a registered office in and are
approved in another Member State, must maintain a place
of business or other permanent infrastructure in Austria in
order to be able to carry out their activities there;

Pleas in law and main arguments

The Austrian authorities require of every inspection body in
the field of organic production of agricultural products having
a registered office in and approved in another Member State
that it must also maintain a registered office or place of busi-
ness in Austria in order to be allowed to carry out business
activities in Austria. This requirement is contrary to the prin-
ciple of freedom to provide services as it renders impossible the
supply of services in Austria by companies with an establish-
ment in other Member States.

Under Article 49 freedom to provide services is to be under-
from a base in one
stood as the right, without hindrance,
in another
services
to provide individual
Member State,
Member State without maintaining a permanent establishment
there. According to the settled case-law of the Court, the guar-
antee of freedom to provide services requires not only the
removal of all discrimination on the basis of nationality but
also the abolition of all restrictions which lend themselves to
prohibiting, hindering or rendering less attractive the activities
of a services provider who has an establishment in another
Member State and regularly renders similar services there.
Article 49 therefore precludes the application of a national
regulation or administrative practice which, without objective
justification, restricts the opportunity for a services provider to
actually make use of the freedom to provide services.

The reasons given by the Republic of Austria — the alleged
exercise of official authority by the inspection bodies and the
public interest — are not such as to justify that restriction on
the freedom to provide services. Reference to the exercise of
official authority as a justification for the present restriction on
the freedom to provide services would only be lawful and
acceptable if the activity in question were one which consti-
tutes direct and specific participation in the exercise of official
authority. However, the inspection bodies are not public autho-
rities: they cannot compulsorily enforce sanctions, they issue
no public documents and the legal relationship between an
inspection body and a producer is governed purely by private
law.

The fact that an inspection body has no place of business in
jeopardise the public interest as the real
Austria does not
control according to Community law criteria takes place when
the inspection body in question is approved and examined by
the public authorities of the approving Member State. In the
present case Community coordination measures and harmoni-
the interest
sation provisions also exist, which ensure that
which the Republic of Austria is putting forward is also
pursued according to the same standards in other Member
States.