Case C-458/08: Action brought on 21 October 2008 — Commission of the European Communities v Portuguese Republic
Date: 2008-10-21
Institutions: Court of Justice
Subjects: Portugal, action for failure to fulfil an obligation, building industry, provision of services, town-planning regulations

20.12.2008

EN

Official Journal of the European Union

C 327/19

Parties to the main proceedings

Pleas in law and main arguments

Panagiotis

Claimants:
I. Karanikolas, Valsamis Daravanis,
Georgios Kouvoukliotis, Panagiotis Dolou, Dimitrios Z. Parisis,
Konstantinos Emmanouil, Ioannis Anasoglou, Pantelis A. Beis,
Dimitrios Khatziandreou, Ioannis A. Zaragkoulias, Triantafillos
K. Mavrogiannis, Sotirios T. Liotakis, Vasilios Karampasis,
Dimitrios Melissidis, Ioannis V. Kleovoulos, Dimitrios I. Patsakos,
Theodoros Fournarakis, Dimitrios K. Dimitrakopoulos and
Sinetairismos Paraktion Alieon Kavalas

Defendants:
Nomarkhiaki Aftodiikisi Dramas — Kavalas — Xanthis

Ipourgos Agrotikis Anaptixis kai Trofimon and

Interveners: Alieftikos Agrotikos Sinetairismos gri-gri nomou
Kavalas ‘Makedonia’ and Panellinia Enosi Plioktiton Mesis Aliias
(P.E.P.M.A.)

Questions referred

1. Is it permitted, for the purposes of Article 1(2) of Council
Regulation No 1626/94, for a Member State to adopt supple-
mentary measures consisting in the complete prohibition of
the use of fishing gear whose use is in principle allowed
under the provisions of that regulation?

2. Is it permitted, for the purposes of the provisions of that
regulation, to use in the marine area of a Member State with
a Mediterranean coastline fishing gear which is not included
among the gear specified as being in principle prohibited in
Article 2(3) and Article 3(1) and (1a) of the regulation and
whose use was prohibited before the regulation entered into
force by a national provision of the Member State?

Action brought on 21 October 2008 — Commission of the
European Communities v Portuguese Republic

(Case C-458/08)

(2008/C 327/31)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa and P. Guerra e Andrade, Agents)

Defendant: Portuguese Republic

Form of order sought

The Portuguese law on access to construction activity and
continued operation therein (Decree-Law No 12/2004) makes
the exercise of construction activity in Portugal subject to a
licence.

No undertaking, without exception, may carry on in Portugal
building, rebuilding, extension, alteration, repair, conservation,
cleaning, restoration or demolition work or, in general terms,
any work whatsoever related to construction without prior
authorisation issued by the Portuguese authorities.

including Community undertakings,

The Portuguese competition legislation prohibiting undertak-
ings,
from providing
construction services in Portugal without prior authorisation to
the construction industry issued by the Portuguese
enter
authorities constitutes an infringement of Article 49 EC.

The requirements for access to the building industry, as laid
down in the Portuguese legislation, are establishment require-
ments. The Portuguese legislation does not distinguish establish-
ment from the provision of services of a temporary nature.

In order to provide services in Portugal undertakings established
in another Member State are obliged to satisfy all the conditions
necessary for establishment, which means in practice that there
is no solution for those construction companies other than to
establish themselves in Portugal. Such a requirement seriously
restricts freedom to provide services.

The requirements in relation to continuing to operate also
amount to restrictions of the freedom to provide services, for
they make it impossible to provide construction services of a
temporary nature.

The reasons given by the Portuguese State in order to justify the
restrictions in question have not been substantiated and cannot
be taken into consideration.

Action brought on 21 October 2008 — Commission of the
European Communities v Hellenic Republic

(Case C-460/08)

(2008/C 327/32)

Language of the case: Greek

— A declaration that the Portuguese Republic, by imposing in
respect of the provision of building services in Portugal the
same requirements as in respect of establishment, has failed
to fulfil its obligations under Article 49 EC;

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Rozet and D. Triantafillou)

— an order that the Portuguese Republic should pay the costs.

Defendant: Hellenic Republic