Case C-568/07: Action brought on 21 December 2007 — Commission of the European Communities v Hellenic Republic
Date: 2007-12-21
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), capacity to exercise rights, freedom of trade, independent retailer, optical industry

8.3.2008

EN

Official Journal of the European Union

C 64/25

5.a. Can undertakings,

such as

the authorised institutions
referred to in Question 1, which, on the one hand, are
required to employ all their capital for the benefit of public
housing, but which, on the other hand, also undertake
commercial activities in respect of public housing, be
regarded, for all or some of their tasks, as undertakings
entrusted with the operation of
services of general
economic interest, as referred to in Article 86(2) of the EC
Treaty?

5.b. For the answer to Question 5.a to be in the affirmative, is
it necessary for the undertakings concerned to keep sepa-
rate accounts from which it is absolutely clear what costs
and receipts are associated with their social activities, on
the one hand, and with their commercial activities on the
other, and for that obligation to be laid down in national
legislation? Should it
then be ensured that a Member
State's financial resources benefit only the social activities
and their continuity?

6.a.

If an authorised institution as referred to in Question 1 can
be regarded, in respect of all or some of its activities, as an
undertaking entrusted with the operation of services of
general economic interest as referred to in Article 86(2) of
the EC Treaty, can the entrustment of the operation of
such services justify the imposition on the authorised insti-
tution of a restriction on the free movement of capital as
referred to in Article 56 of the EC Treaty?

6.b. When applying that justification, does a Member State have
a wide margin of discretion in determining the scale of the
general economic interest concerned and the manner in
which that interest is promoted? Is one of the determinants
in this context the fact that the Community has few, if any,
powers in the public housing sector?

7.a. Can the fact that a Member State provides certain under-
takings as referred to in Article 86(2) of the EC Treaty with
financial resources make it necessary for the territorial
scale of their activities to be limited in order to prevent
those financial resources from constituting prohibited State
aid and the undertakings employing those resources in
another Member State from competing with undertakings
in that Member State under conditions which do not
comply with market rules?

7.b. Can a Member State,

in this instance the Netherlands,
require authorised institutions as referred to in Question 1
wishing to undertake housing construction activities of a
social and commercial nature in another Member State to
obtain prior authorisation if there is as yet no legal obliga-
tion in the first mentioned Member State to make a distinc-
tion between the two types of activity? Is the requirement
of prior authorisation in this case a necessary and propor-
tionate means of ensuring compliance with Articles 87 and
88 of the EC Treaty?

Action brought on 21 December 2007 — Commission of
the European Communities v Hellenic Republic

(Case C-568/07)

(2008/C 64/37)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Zavvos and E. Traversa)

Defendant: Hellenic Republic

Form of order sought

— declare that, by failing to take the necessary measures to
comply with the judgment delivered by the Court of Justice
on 21 April 2005 in Case C-140/03, the Hellenic Republic
has failed to fulfil its obligations under Articles 43 EC and
48 EC;

— order the Hellenic Republic to pay to the Commission a
proposed penalty payment of EUR 70 956 for each day of
delay in complying with the judgment which was delivered
in Case C-140/03, from the day when judgment is delivered
in the present case until the day when the judgment deliv-
ered in Case C-140/03 has been complied with;

— order the Hellenic Republic to pay to the Commission a
lump sum, the amount of which is a daily sum multiplied
by the number of the days that the failure to fulfil obliga-
tions continues from the day when judgment was delivered
in Case C-140/03 until the date on which judgment is deliv-
ered in the present case;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

1. In the judgment delivered by it on 21 April 2005 in Case
C-140/03 Commission v Greece
relating to restrictions
concerning the opening and operation of opticians' shops in
breach of Articles 43 EC and 48 EC, the Court of Justice of
the European Communities:

‘1. [declared] that by enacting and maintaining in force Law
No 971/79 on the exercise of the profession of optician
and on shops for the sale of optical articles, which does
not permit a qualified optician as a natural person to
operate more than one optician's shop,
the Hellenic
Republic [had] failed to fulfil its obligations under Article
43 EC;

C 64/26

EN

Official Journal of the European Union

8.3.2008

2. [declared] that by enacting and maintaining in force Law
No 971/79 and Law No 2646/98 on the development of
a national social security system and other provisions,
under which the establishment by a legal person of an
optician's shop in Greece is subject
to the following
conditions:

— authorisation for the establishment and operation of
the optician's shop must have been granted to a
recognised optician who is a natural person,
the
person holding the authorisation to operate the shop
must hold at
the company's share
capital and must participate at least to that extent in
the profits and losses of
the company, and the
company must be in the form of a collective or
limited partnership, and

least 50 % of

— the optician in question may participate at most in
one other company owning an optician's
shop,
subject to the condition that the authorisation for the
establishment and operation of that shop is in the
name of another authorised optician,

the Hellenic Republic [had] failed to fulfil its obligations
under Articles 43 EC and 48 EC;

3. [ordered] the Hellenic Republic to pay the costs’.

2. Article 228 EC provides that if the Court of Justice finds that
a Member State has failed to fulfil an obligation under the
Treaty, the State is to be required to take the necessary
measures to comply with the judgment of
the Court of
Justice.

requested the Greek Government

3. By letter of 9 June 2005, the Commission of the European
Communities
to take
measures to comply with the abovementioned judgment of
the Court. In its letter, it also stated that Law No 3204/2003
could not constitute an adequate response to the Court's
judgment, at least as regards the second claim, since under
that Law the right to establish and operate an optician's shop
continues to fall to a large degree to opticians.

4. The Greek Government replied by letter of 11 August 2005.
It stated that many provisions of Law No 971/79 had been
amended and Article 27(4) of Law No 2646/98 had been
repealed. More specifically,
the new Article 6(6) of Law
No 971/79 allowed natural persons holding a professional
authorisation and companies and firms to operate more than
one shop provided that management of
the shop was
entrusted to an optician possessing the relevant professional
authorisation.

5. The new Article 7(1) of Law No 971/79 allows companies
and firms, whatever their legal form, to establish opticians'
shops provided that: (i) as regards partnerships, the majority
of partners and the manager, or the majority of managers,
will be opticians possessing authorisation to pursue that
profession; (ii) as regards private limited companies, more
than half of the shareholders representing more than half of
the share capital will be opticians possessing a professional
authorisation; and (iii) as regards public limited companies,
at least 51 % of the share capital will be owned by opticians
who are citizens of countries of the European Union and
possess the qualifications laid down by Law No 971/79 and
by Presidential Decrees Nos 231/98 and 165/2000 as
amended by Presidential Decree No 373/2001.

6. The applicant submits that the new Article 7(1) of Law
No 971/79 does not constitute an adequate response to the
second claim. That article retains the requirement for opti-
cians' shops to be owned by authorised opticians, inasmuch
as they must either constitute the majority of the partners or
hold the majority of the share capital.

7. Consequently, there is always a restriction on the freedom of
establishment in Greece of companies and firms of other
Member States, in so far as they cannot in any event be the
sole owners of an optician's shop. That restriction is not
justified by the need to ensure a high level of public-health
protection. As the Court states in Case C-140/03, this objec-
tive ‘may be achieved by measures which are less restrictive
of the freedom of establishment both for natural and legal
persons, for example by requiring the presence of qualified,
salaried opticians or associates in each optician's shop, rules
concerning civil liability for the actions of others, and rules
requiring professional indemnity insurance’ (paragraph 35).

8. Consequently, the Commission considers that, with the new
Article 7(1) of Law No 971/79,
the Hellenic Republic
continues to breach its obligations under Articles 43 EC and
48 EC. The provisions enacted by the Hellenic Republic
therefore amount to only partial compliance with the Court's
judgment referred to in paragraph 1.

9. On the basis of the foregoing, the Commission finds that the
Hellenic Republic has not yet taken all the measures that are
required for compliance with the Court's judgment in Case
C-140/03 Commission v Greece, which concerns restrictions
relating to the establishment and operation of opticians'
shops, in breach of Articles 43 EC and 48 EC.