CELEX: C2003/135/23
Language: en
Date: 2003-06-07 00:00:00
Title: Case C-157/03: Action brought on 7 April 2003 by the Commission of the European Communities against the Kingdom of Spain

C 135/16                 EN                       Official Journal of the European Union                                          7.6.2003
Infringement of Article 1 of Regulation (EEC) No 2241/87 and              The applicant claims that the Court, in upholding its appli-
Article 2 of Regulation (EEC) No 2847/93: these provisions                cation, should:
require the Member States to monitor fishing activity by
vessels flying their flag. In that connection, they must carry
out all necessary inspections. From the figures concerning the
number of cases of overfishing, and the extent thereof, it is             1.    Declare that, by imposing, contrary to Directives 68/
plainly apparent that the Belgian authorities failed to take                    360 ( 1), 73/148 (2) and 90/365 ( 3), the obligations to
the control measures necessary to prevent those cases of                        obtain a residence visa for the issue of a residence permit
overfishing.                                                                    to nationals of a non-Member State, who are members of
                                                                                the family of a Community national who has exercised
                                                                                his right to freedom of movement, and, by not granting,
                                                                                contrary to Directive 64/221 ( 4), a residence permit as
Infringement of Article 11(2) of Regulation (EEC) No 2241/87                    soon as possible and, at the latest, within the six months
and Article 21(2) of Regulation (EEC) No 2847/93: the                           following the application for a permit, the Kingdom of
Belgian authorities clearly acted negligently in regard to the                  Spain has failed to fulfil its obligations under the EC
management of the quotas by failing, in several cases, to                       Treaty.
impose at the appropriate time a closing date for fishing.
                                                                          2.    Order the Kingdom of Spain to pay the costs.
Infringement of Article 1(2) of Regulation (EEC) No 2241/87
and 31 of Regulation (EEC) No 2847/93: where fishing vessels
landed fish after the closing date for fishing of the relevant fish
stock or without a quota for that fish stock having been
allocated to Belgium, the masters of those vessels acted in
breach of Community law. The Belgian authorities were
therefore obliged to institute penal or administrative proceed-
ings against those masters or any other persons responsible.              Pleas in law and main arguments
The Belgian Government has provided no evidence that that
has been done.
( 1) OJ 1983 L 24, p. 1.                                                  The formalities which may be required by a Member State of a
( 2) OJ 1992 L 389, p. 1.                                                 Community national exercising his right to freedom of move-
( 3) OJ 1987 L 207, p. 1.                                                 ment or of a member of his family are clearly circumscribed
( 4) OJ 1993 L 261, p. 1.                                                 by the relevant Community legislation with the result that, in
                                                                          the Commission’s view, it is plainly contrary to the letter and
                                                                          spirit of Community law, as laid down in Directives 68/360,
                                                                          73/148 and 90/360, for a Member State to require any other
                                                                          formality in connection with entry or residence.
                                                                          As a consequence of that premiss, the Commission is of the
                                                                          view that the Spanish legislation and practice, in accordance
Action brought on 7 April 2003 by the Commission of                       with the matters established, conflict with those principles of
the European Communities against the Kingdom of Spain                     Community law. Essentially, the residence visa required under
                                                                          Spanish legislation is an instrument enabling the national
                                                                          authorities to examine — prior to entry into Spanish territory
                          (Case C-157/03)                                 — the reasons why a national of a non-Member State wishes
                                                                          to reside for more than three months on national territory.
                          (2003/C 135/23)
                                                                          The national of a non-Member State who is the member of the
                                                                          family of a Community national exercising the right to
An action against the Kingdom of Spain was brought before                 freedom of movement cannot be assimilated to the national of
the Court of Justice of the European Communities on 7 April               a non-Member State without that family tie. On the contrary,
2003 by the Commission of the European Communities,                       that national of a non-Member State is the beneficiary of
represented by Carmel O’Reilly, Legal Adviser, and by Luis                derived rights under Community law and thus enjoys rights of
Escobar Guerrero, of its Legal Service, with an address for               entry into and residence in the territory of another Member
service in Luxembourg.                                                    State at the same time as the Community national.
 ---pagebreak--- 7.6.2003                  EN                          Official Journal of the European Union                                            C 135/17
That national of a non-Member State may not be required to                    The applicant claims that the Court should:
show any independent reason for entering into and residing in
the territory. His right, as a matter of Community law, is                    1.    Declare that, by including in the invitation to bid in
derived from the right enjoyed by the Community national in                         various tender procedures organised by the Instituto
such a way that to impose on that person prior formalities                          Nacional de la Salud para la prestación de servicios de
concerning entry into national territory constitutes not only a                     terapias respiratorias domiciliarias criteria for admission,
restriction on his (derived) right but also a restriction on the                    assessment and selection which require bidders to have,
principal right of the Community national.                                          at the time of submitting the bid, certain installations on
                                                                                    Spanish territory, or within a radius of 1 000 kilometres
                                                                                    thereof, and, prior to that, public information offices in
The Commission at the same time emphasises that, in con-                            specific locations, or that they should at the time be
formity with the general system of the Community rules on                           providing the same kind of service, the Kingdom of Spain
the issue of residence permits and, with particular regard to                       has failed to fulfil its obligations under Articles 43 and 49
Article 5 of Directive 64/221, the Member State must adopt                          EC;
the decision concerning the residence permit as soon as
possible and in any event not later than six months of the date               2.    Order the Kingdom of Spain to pay the costs.
of the application, it being understood that this maximum
period of six months is to be taken into account only in
cases where examination of the application is interrupted on
grounds of public policy.
                                                                              Pleas in law and main arguments
( 1) Directive 68/360 of 15 October 1968 on the abolition of
     restrictions on movement and residence within the Community              The Commission takes the view that the invitations to bid
     for workers of Member State and their families (OJ, English Special      relating to the tender procedures which are the subject of these
     Edition 1968 (I), p. 485).                                               proceedings are discriminatory inasmuch as they are not
( 2) Directive 73/148/EEC of 21 May 1973 on the abolition of                  justified by any overriding reason relating to the public interest
     restrictions on movement and residence within the Community
     for nationals of Member States with regard to establishment and
                                                                              nor do they observe the principle of proportionality.
     the provision of services (OJ 1973 L 172, p. 14).
( 3) Council Directive 90/365 of 28 June 1990 on the right of
     residence for employees and self-employed persons who have
     ceased their occupational activity (OJ 1990 L 180 p. 28).
( 4) Directive 64/221/EEC of the Council of 25 February 1964 on the
     coordination of special measures concerning the movement and
     residence of foreign nationals which are justified on grounds of
     public policy, public security or public health (OJ English Special
     Edition (1963-1964) I, p. 117).
                                                                              Appeal brought on 7 April 2003 by Jan Pflugradt against
                                                                              the order of the Court of First Instance of the European
                                                                              Communities (Fifth Chamber) of 11 February 2003 in
                                                                                 Case T-83/02, Jan Pflugradt v European Central Bank
                                                                                                       (Case C-159/03 P)
                                                                                                         (2003/C 135/25)
Action brought on 7 April 2003 by the Commission of
the European Communities against the Kingdom of Spain
                           (Case C-158/03)                                    An appeal against the order of the Court of First Instance of
                                                                              the European Communities (Fifth Chamber) of 11 February
                                                                              2003 in Case T-83/02, Jan Pflugradt v European Central Bank,
                           (2003/C 135/24)                                    was brought before the Court of Justice of the European
                                                                              Communities on 7 April 2003 by Jan Pflugradt, represented
                                                                              by Dr Norbert Pflüger, 44 Kaiserstrasse, D-60329 Frankfurt
                                                                              am Main, with an address for service in Luxembourg.
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 7 April
2003 by the Commission of the European Communities,                           The appellant claims that the Court, at the same time as it sets
represented by Gregorio Valero Jordana and Klaus Wiedner, of                  aside the order appealed against, should:
its Legal Service, acting as Agents, with an address for service
in Luxembourg.                                                                1.    Declare the action admissible;