CELEX: C2003/101/40
Language: en
Date: 2003-04-26 00:00:00
Title: Case C-81/03: Action brought on 24 February 2003 (by fax on 21 February 2003) by the Commission of the European Communities against the Republic of Austria

C 101/24               EN                        Official Journal of the European Union                                             26.4.2003
       the case and made a manifest error of assessment. The             The Commission takes the view that there are alternative
       Court of First Instance thus infringed Articles 230, 232          methods for capturing thrushes with the aim of avoiding
       and 234 EC as well as the Statute and the Rules of                damage to crops, such as hunting with rifles or employing
       Procedure.                                                        auditory or visual deterrents using flare guns, vibrating tapes
                                                                         or a combination of such methods. In other Spanish regions
                                                                         (Andalusia, Castilla-La Mancha, etc) there are extensive areas
( 1) OJ C 44 of 22.2.2003.                                               of olive groves and vineyards where hunting with lime is not
                                                                         permitted and where hunting with rifles in autumn and winter
                                                                         is considered adequate protection.
                                                                         Finally, the derogation under Article 9(1)(c) of Directive 79/
                                                                         409/EEC cannot apply in view of the fact that the parany is a
                                                                         non-selective hunting method and the high number of speci-
                                                                         mens captured.
Action brought on 21 February 2003 by Commission of
    the European Communities against Kingdom of Spain
                                                                         (1 ) OJ 1979 L 103, p. 1.
                                                                         (2 ) According to Article 4(1) of Decree 135/2000, ‘the only species
                          (Case C-79/03)                                      whose capture is permitted are the following: song thrush (Turdus
                                                                              philomenus), fieldfare (Turdus pilares), redwing (Turdus iliacus)
                                                                              and mistle thrush (Turdus viscivorus)’.
                         (2003/C 101/39)
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 21 Febru-
ary 2003 by the Commission of the European Communities,
represented by Gregorio Valero Jordana, of its Legal Service,            Action brought on 24 February 2003 (by fax on 21 Febru-
with an address for service in Luxembourg.                               ary 2003) by the Commission of the European Communi-
                                                                                        ties against the Republic of Austria
The applicant claims that the Court should:                                                           (Case C-81/03)
—      declare that, by tolerating the practice of hunting with                                      (2003/C 101/40)
       birdlime in the Autonomous Community of Valencia,
       governed by Decree 135/2000 of 12 September 2000 of
       the Government of Valencia laying down conditions and
       requirements for the granting of special permits for the
       hunting of thrush with birdlime in the Community of               An action against the Republic of Austria was brought
       Valencia, the Kingdom of Spain has failed to fulfil its           before the Court of Justice of the European Communities on
       obligations under Article 8(1) and Article 9(1) of Council        24 February 2003 (by fax on 21 February 2003) by the
       Directive 79/409/EEC ( 1) of 2 April 1979 on the conser-          Commission of the European Communities, represented by
       vation of wild birds.                                             Maria Patakia, Legal Adviser in the Commission’s legal service
                                                                         and Claudia Schmidt, a member of the Commission’s legal
                                                                         service, with an address for service at the office of Luis Escobar
—      order the Kingdom of Spain to pay the costs.                      Guerrero, a member of the Commission’s legal service, Wagner
                                                                         Centre C 254, Luxembourg-Kirchberg.
Pleas in law and main arguments                                          The Commission claims that the Court should:
                                                                         1.     declare that, by prohibiting, under Paragraph 7a of
The ‘parany’ is an arrangement intended for the capture of                      the Bundesgesetz über die Regelung der gehobenen
thrush ( 2), which requires the use of small twigs impregnated                  medizinisch-technischen Dienste (Federal Law on the
with birdlime. Hunting with birdlime is a non-selective method                  Regulation of Higher Medico-Technical Services; ‘MTD-
of capture, as referred to in Annex IV(a) to Directive 79/409/                  Gesetz’), the independent exercise in Austria of certain
EEC and, accordingly, prohibited under Article 8 thereof, since                 medico-technical professions (laboratory, radiological
it cannot be guaranteed that birds of the species listed in                     and orthoptic services), the Republic of Austria has failed
Annex I to Directive 79/409/EEC or other protected migratory                    to fulfil its obligations under Articles 43 and 49 EC;
or non-hunting species are not caught in the parany and
trapped in the lime.                                                     2.     order the Republic of Austria to pay the costs.
 ---pagebreak--- 26.4.2003              EN                         Official Journal of the European Union                                       C 101/25
Pleas in law and main arguments                                           Pleas in law and main arguments
Medico-technical laboratory, radiology and orthoptic services             In 2000 the Commission received a complaint from an
may not be exercised on an independent basis in Austria. For              economic operator alleging wrongful implementation in Itali-
the exercise of those three professions, an employment                    an law of Council Directive 89/655/EEC ( 1) of 30 November
relationship is necessary. A member of those professional                 1989 concerning the minimum safety and health requirements
categories from another Member State, where the exercise of               for the use of work equipment by workers at work (second
those professions on an independent basis is entirely normal,             individual Directive within the meaning of Article 16(1) of
therefore has no opportunity to carry on his or her profession            Directive 89/391/EEC).
in Austria as an independent. That national measure therefore
undoubtedly constitutes an obstacle to the freedom of estab-
lishment and the freedom to provide services.                             Despite being contacted by the Commission on numerous
                                                                          occasions, the Italian authorities have failed to provide any
                                                                          information on the complainant’s allegations. That failure
                                                                          to communicate information repeatedly requested by the
The Commission finds the Republic of Austria’s argument to                Commission constitutes a failure to fulfil the obligation,
justify that measure unconvincing. It has not been sufficiently           imposed on Member States by Article 10 EC, to offer genuine
demonstrated that salaried employment relationships in the                cooperation to the Community institutions.
paramedical sector concerned are in themselves sufficient to
ensure, or at least better able to ensure, a higher level of health.
The prohibition under Austrian law of the exercise of those               (1 ) OJ L 393 of 30.12.1989, p. 13.
three professions on an independent basis constitutes an
unjustified restriction and therefore an infringement of the
freedom of establishment and the freedom to provide services
laid down by Articles 43 and 49 EC.
                                                                          Action brought on 26 February 2003 by the Commission
                                                                          of the European Communities against the Kingdom of
                                                                                                         Spain
Action brought on 25 February 2003 by the Commission                                                (Case C-84/03)
of the European Communities against the Italian Republic
                                                                                                   (2003/C 101/42)
                          (Case C-82/03)
                         (2003/C 101/41)                                  An action against the Kingdom of Spain was brought before
                                                                          the Court of Justice of the European Communities on 26 Febru-
                                                                          ary 2003 by the Commission of the European Communities,
                                                                          represented by G. Valero Jordana and K. Wiedner, with an
                                                                          address for service in Luxembourg.
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 25 February
2003 by the Commission of the European Communities,                       The applicant claims that the Court of Justice should:
represented by Antonio Aresu, acting as Agent.
                                                                          1.    declare that, by failing correctly to incorporate into
                                                                                national law Council Directive 93/36/EEC of 14 June
The applicant claims that the Court should:                                     1993 coordinating procedures for the award of public
                                                                                supply contracts ( 1) and Council Directive 93/37/EEC of
                                                                                14 June 1993 concerning the coordination of procedures
a)    find that the Italian Republic, by failing to offer the                   for the award of public works contracts ( 2) and, in
      Commission any genuine cooperation in a case concern-                     particular:
      ing the health and safety of workers, has failed to fulfil its
      obligations under Article 10 EC, and
                                                                                —     by excluding from the scope of Royal Legislative
                                                                                      Decree 2/2000 of 16 June approving the revised
b)    order the Italian Republic to pay the costs.                                    and codified Public Contracts Law by, specifically,