Case C-564/07: Action brought on 21 December 2007 — Commission of the European Communities v Republic of Austria
Date: 2007-12-21
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, consultancy, freedom to provide services, patents licence

C 79/12

EN

Official Journal of the European Union

29.3.2008

likelihood of confusion.
the Court had considered the
whole of the word/figurative sign ‘MICRO FOCUS’, it would
have correctly interpreted Article 8(1)(b) of Regulation
No 40/94.

If

(1) OJ 1994 L 11, p. 1.

2. If Question 1(a)

answered in the
is
Question 1(b) is answered in the negative:

affirmative

and

In legal proceedings between private individuals, must a
national court disapply a statutory provision which is clearly
incompatible with Community law, or
is the legitimate
expectation of persons subject to the law — that national
laws which are in force will be applied — to be taken into
account so that a national law is disapplied only after the
Court of Justice has ruled on the provision at issue or on a
substantially similar provision?

Reference for a preliminary ruling from the Landesarbeits-
lodged on 13 December
gericht Düsseldorf

(Germany)

2007 — Seda Kücükdeveci v Swedex GmbH & Co. KG

(1) OJ L 303, p. 16.

(Case C-555/07)

(2008/C 79/21)

Language of the case: German

Referring court

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

(Case C-564/07)

(2008/C 79/22)

Landesarbeitsgericht Düsseldorf

Language of the case: German

Parties to the main proceedings

Applicant: Seda Kücükdeveci

Defendant: Swedex GmbH & Co. KG

Questions referred

1.

(a) Is a national provision which provides for the periods of
notice on termination which employers are required to
observe to be increased incrementally with the length of
service, but which disregards periods of the employee's
employment before the age of 25, incompatible with the
Community law prohibition against discrimination on
the ground of age, and specifically with primary Com-
munity law or with Council Directive 2000/78/EC of
27 November 2000 (1)?

(b) Can the fact that employers are required to observe only
a basic period of notice when terminating the employ-
ment of younger employees be justified on the grounds
that employers are recognised as having a commercial
interest in flexibility as regards staffing — an interest
which would be adversely affected by longer periods of
notice — and that younger employees are not recognised
as having the protection available to older employees (in
the form of longer notice periods) with respect to their
employment
example
because, having regard to their age and/or their lesser
social, family and private obligations they are assumed to
have greater professional and personal
flexibility and
mobility?

arrangements,

status or

for

Parties

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

Defendant: Republic of Austria

Form of order sought

— declare that the Republic of Austria has infringed its obliga-

tions under Article 49 EC, by

— requiring all patent

lawyers

lawfully established in
another Member State wishing to provide services
temporarily in Austria to first enrol
in the special
Austrian registers,
insofar as registration is conditional
on taking out professional liability insurance,

— making patent lawyers lawfully established in another
Member State wishing to provide services temporarily in
to disciplinary supervision by the
Austria
Austrian authorities, even as
for
regards
conduct other than the serious breach of professional
duties,

sanctions

subject

— making any provision of service by a patent

lawyer
lawfully established in another Member State wishing to
provide services temporarily in Austria conditional on
taking out professional liability insurance,

29.3.2008

EN

Official Journal of the European Union

C 79/13

— requiring patent lawyers lawfully established in another
Member State temporarily wishing to provide services
temporarily in Austria to instruct a locally registered
domestic lawyer or to appoint a person residing in
Austria as process agent.

— order Austria to pay the costs.

Pleas in law and main arguments

the public interest is limited to those interests that are not
already protected by provisions to which the service provider is
subject in his Member State of establishment.

The Commission is of the view that the restrictions in dispute
are not allowed as a derogation expressly provided for by the
Treaty or justified, in accordance with the case-law of the Court
of Justice, by overriding reasons relating to the public interest.
The requirements in question to which patent lawyers estab-
lished in other Member States are subject go beyond that which
is necessary to achieve the objectives of consumer protection
and the proper conduct of proceedings.

the Court of

According to consistent case-law of
Justice,
Article 49 EC requires not only the elimination of any kind of
discrimination on the grounds of nationality against a service
provider established in another Member State, but also the
removal of all restrictions — even if they apply uniformly to
domestic service providers and service providers who are
nationals of other Member States — which are liable to prohibit,
impede or render less attractive the activities of service providers
established in another Member State in which they legally
provide equivalent services.

According to the Commission, the Austrian legal provisions
regarding patent lawyers represent a restriction on the freedom
to provide services within the meaning of Article 49 EC, by
requiring patent lawyers lawfully established in another Member
State wishing to provide services temporarily in Austria to take
out professional
in the Austrian
liability insurance, to enrol
register, to submit to the disciplinary supervision of the Austrian
Patent Lawyers Association and, if they wish to represent clients,
to instruct a locally registered domestic lawyer.

Those requirements are liable to impede the temporary provi-
sion of services in Austria by a patent lawyer lawfully estab-
lished in another Member State, or at least to render the provi-
sion of such services less attractive. That is to say that compli-
ance with the legal provisions of both the Member State of
establishment and the Member State in which the service is
provided places an additional financial burden on the service
provider, since he has to familiarise himself with the provisions
applicable in the Member State in which the service is provided;
in addition, he is subject to two regulatory systems, without the
Member State in which the service is provided taking into
consideration the rules to which he is already subject in the
Member State of origin. Moreover, the rules in issue are also
likely to discourage consumers from enlisting the services of a
service provider established in another Member State, as this
generates additional costs that are not incurred if the service
provider is Austrian.

National provisions that prohibit, impede or render less attrac-
tive the exercise of the fundamental freedoms guaranteed by the
Treaty are compatible with the Treaty only if, first, they are justi-
fied by imperative requirements in the public interest, second,
they are applied without discrimination, third, they are suitable
for achieving the objective which they pursue, and, fourth, they
do not go beyond what is strictly necessary to attain that objec-
tive. The recognition of interests as imperative requirements in

Reference for a preliminary ruling from the Tribunal
Superior de Justicia de Asturias
lodged on
24 December 2007 — José Manuel Blanco Pérez and Maria
del Pilar Chao Gómez v Consejería de Salud y Servicios
Sanitarios
Federación
Empresarial de Farmacéuticos Españoles and Plataforma
para la Libre Apertura de Farmacias

de Asturias,

Principado

(Spain)

del

(Case C-570/07)

(2008/C 79/23)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Asturias

Parties to the main proceedings

Applicants: José Manuel Blanco Pérez and Maria del Pilar Chao
Gómez

Defendants: Consejería de Salud y Servicios Sanitarios del Princi-
pado de Asturias, Federación Empresarial de Farmacéuticos
Españoles and Plataforma para la Libre Apertura de Farmacias

Question referred

Should Articles 2, 3 and 4 of Decree 72/2001 dated 19 July of
the Principality of Asturias regulating pharmacies and pharma-
ceutical dispensaries, and Sections 4, 6 and 7 of the Annex
thereto, be considered to be in breach of Article 43 of the
EC Treaty?