CELEX: C2003/101/41
Language: en
Date: 2003-04-26 00:00:00
Title: Case C-82/03: Action brought on 25 February 2003 by the Commission of the European Communities against the Italian Republic

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,