Case C-161/07: Action brought on 23 March 2007 — Commission of the European Communities v Republic of Austria
Date: 2007-06-23
Institutions: Court of Justice
Subjects: Austria, EU national, European Commission, accession to the European Union, action for failure to fulfil an obligation, right of establishment

23.6.2007

EN

Official Journal of the European Union

C 140/9

If the answer to the first question is in the affirmative:

Is the incompatibility with Community law of such a require-
ment, which is a provision of domestic law, to be taken into
account by the national court in proceedings concerning the
approval of a contribution by the interconnected network
operator?

(1) OJ 1990 L 192, p. 10.
(2) OJ 1997 L 199, p. 32.

Reference for a preliminary ruling from the Consiglio di
Stato (Italy) lodged on 21 March 2007 — Salvatore Aiello
and Others v Comune di Milano, Sindaco di Milano, Comi-
tato tecnico — scientifico per l'emergenza del traffico e
della mobilità nella città di Milano, Provincia di Milano,
Regione Lombardia, Ministero delle Infrastrutture e dei
Trasporti, Ministero dell'Interno, Presidenza del Consiglio
dei Ministri, Euromilano SpA, Metropolitana milanese SpA

(Case C-156/07)

(2007/C 140/15)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants: Salvatore Aiello and Others

Defendants: Comune di Milano, Sindaco di Milano, Comitato
tecnico — scientifico per l'emergenza del traffico e della mobi-
lità nella
città di Milano, Provincia di Milano, Regione
Lombardia, Ministero delle Infrastrutture e dei Trasporti, Minis-
tero dell'Interno, Presidenza del Consiglio dei Ministri, Euromi-
lano SpA, Metropolitana milanese SpA

2. Does Article 4 of Council Directive 85/337/EEC, in so far as
it gives Member States the possibility of providing for envir-
onmental impact assessments to be carried out for projects
in the classes listed in Annex II on the basis of case-by-case
assessments or predetermined criteria — account also being
taken of the criteria set out in Annex III — create a specific
obligation or merely an option for the Member States to take
account of all the criteria listed in Annex III?

3. Does Article 1 of the Presidential Decree of 12 April 1996
constitute due transposition into national law of Article 4 of
Directive 85/337/EEC and Annex III thereto by the Italian
legislature, given that it does not provide, as a criterion for
making projects in the classes listed in Annex II to the Direc-
tive subject to an environmental impact assessment, for the
criterion of cumulation with other projects, as referred to in
Annex III to the Directive?

(1) OJ 1985 L 175, p. 40.

Action brought on 23 March 2007 — Commission of the
European Communities v Republic of Austria

(Case C-161/07)

(2007/C 140/16)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by E. Traversa and G. Braun, acting as Agents)

Defendant: Republic of Austria

Form of order sought

Questions referred

1. Must Article 2 of Council Directive 85/337/EEC (1), in so far
as it states that projects likely to have significant effects on
the environment are to be made subject to an environmental
impact assessment, and that such projects are defined in
Article 4, be interpreted as meaning:

— that any project with a significant effect on the environ-
ment must, even if it is not listed in Annexes I or II to
the Directive, be made subject
to an environmental
impact assessment;

— or, conversely,

that only projects of a kind listed in
Annexes I and II to the Directive must be made subject
to an environmental impact assessment?

— declare that, by requiring, for the registration of companies
in the register of commerce on application by nationals of
the new Member States of the EU other than Malta and
Cyprus, a determination of their self-employed status by the
employment market service or the production of a certifi-
cate of exemption, in which connection, for determining the
self-employed status of members of a partnership or
minority shareholders in a limited liability company who
perform work for the company that is typically performed
in an employment relationship, a determination procedure is
to be carried out during which, for a maximum of three
months, the self-employed activity may not be pursued, the
Republic of Austria has infringed Article 43 EC;

— order the Republic of Austria to pay the costs.

C 140/10

EN

Official Journal of the European Union

23.6.2007

Pleas in law and main arguments

The first paragraph of Article 43 guarantees all nationals of a
Member State the right of establishment in another Member
State in order to take up and pursue activities there as self-
employed persons, and to set up companies and manage under-
the
takings in another Member State. As an expression of
general prohibition of discrimination in Article 12 EC, Article
43 EC prohibits discrimination on grounds of nationality in the
field of self-employed persons. The requirement of equal treat-
ment with the nationals of the host State is expressed in the
second paragraph of Article 43. Under that provision, freedom
of establishment covers the right to take up and pursue activities
of any kind as self-employed persons and to set up and manage
undertakings, particularly companies,
in the territory of any
other Member State in accordance with the provisions laid
down by the host State for its own nationals.

the activity’. Under the Austrian legislation,

For the registration of a company established under Austrian
law on application by a citizen of one of the Member States of
the European Union which acceded on 1 May 2004 — with the
exception of Malta and Cyprus — the courts keeping the regis-
ters of companies in Austria require a determination of his self-
employed status. The distinction between self-employed and
non-self-employed workers depends on the ‘true economic content
of
in particular,
members of a partnership and members of a limited liability
company with a share of less than 25 % of the business who
perform work which is typically performed in an employment
relationship are regarded as non-self-employed workers. That
presumption applies until the regional office of the employment
market service determines, on application by the member, that
he exercises a significant influence on the management of the
business. Proof of self-employed status is to be provided by the
applicant. Until the determination of self-employed status by
decision, but for a maximum of three months, the persons
concerned cannot take up their activities.

This rule is not compatible with freedom of establishment
under Article 43 EC. It impedes self-employed persons from
eight new Member States in their freedom to become estab-
lished in Austria, by making it considerably difficult for them to
set up a company, without there being any justification for that.
Even if it is the case that the provision in question is only of
limited application, the rule does not thereby lose its discrimina-
the eight Member
tory character. Even though nationals of
States concerned do not always without exception have to make
an application, the decisive point is that Austrian citizens and
nationals of the other Member States never have to make such
the transitional provisions in the
an application. Moreover,
accession treaties provide for restrictions exclusively in respect
of the freedom of movement of workers. For freedom of estab-
lishment there are no such possible restrictions. That the ratio
legis of
the relevant provision is to prevent the transitional
provisions for the freedom of movement of workers from being
circumvented, rather than to restrict freedom of establishment,
does not alter the fact
it amounts to a restriction of
freedom of establishment.

that

Restrictions of freedom of establishment can, under Article 46
EC, be justified only on grounds of public policy, public security

restrictions of a fundamental

or public health or, in the case of measures that are not overtly
discriminatory, on other mandatory grounds in the public
interest. As
such
measures must in any event be suitable for achieving the aim
pursued and not go beyond what is necessary for that purpose.
The Austrian rule in question does not satisfy those require-
ments for justification.

freedom,

There is nothing to indicate that the evasion of the transitional
provisions by nationals of the eight Member States concerned
feared by the Austrian Government may reach such proportions
that the functioning of the Austrian labour market will in fact
be fundamentally threatened. In addition, the two criteria of
assessment of the type of employment — the kind of work
done and influence on the management of the company — are
not appropriate for distinguishing between employment and
self-employed activities. As regards the need for the restriction,
it is not apparent from the Austrian Government's explanation
why a subsequent check after registration of the company could
not, as a less severe means, also achieve the intended purpose.

Reference for a preliminary ruling from the Corte Suprema
di Cassazione (Italy) lodged on 26 March 2007 — Amplis-
cientifica Srl, Amplifin SpA v Ministero dell'Economia e
delle Finanze, Agenzia delle Entrate

(Case C-162/07)

(2007/C 140/17)

Language of the case: Italian

Referring court

La Corte Suprema di Cassazione

Parties to the main proceedings

Applicants: Ampliscientifica Srl, Amplifin SpA

Defendants: Ministero dell'Economia e delle Finanze, Agenzia
delle Entrate

Questions referred

1. Must the last paragraph of Article 4(4) of Council Directive
77/388/EEC (1) of 17 May 1977 be construed as a rule that
is insufficiently precise, with the effect
the Member
States are permitted to apply the VAT scheme set out in that
rule to specific situations involving economic, financial or
legal links among different persons, or as a rule that is suffi-
ciently precise and which, therefore, once a Member State
has decided to adopt that scheme, requires provision to be
made for it to be applied in all cases involving the links set
out in that rule?

that