CELEX: C2003/083/20
Language: en
Date: 2003-04-05 00:00:00
Title: Case C-58/03: Reference for a preliminary ruling by the Raad van State by order of that Court of 4 February 2003 in the case of Y.G. Encheva against Staatssecretaris van Justitie

C 83/12                   EN                         Official Journal of the European Union                                           5.4.2003
The applicant claims that the Court should:                                  Reference for a preliminary ruling by the Raad van State
                                                                             by order of that Court of 4 February 2003 in the case of
                                                                                  Y.G. Encheva against Staatssecretaris van Justitie
a)    declare that, by not adopting the measures necessary to
      comply with the judgment of the Court of Justice of the
                                                                                                      (Case C-58/03)
      European Communities of 9 March 2000 in Case C-386/
      98 ( 1), the Italian Republic has failed to fulfil its obligations
      under Article 228(1) EC.                                                                        (2003/C 83/20)
b)    impose a penalty payment on the Italian Republic in the
      sum of EUR 238 950 per day from the date of notification               Reference has been made to the Court of Justice of the
                                                                             European Communities by order of the Raad van State (Council
      of the judgment in the present case to the date of
      execution thereof.                                                     of State) of 4 February 2003, received at the Court Registry on
                                                                             12 February 2003, for a preliminary ruling in the case of
                                                                             Y.G. Encheva against Staatssecretaris van Justitie on the
c)    order the Italian Republic to pay the costs.                           following questions:
                                                                             1.    Is Article 59(1) of the Agreement establishing an associ-
                                                                                   ation between the European Communities and their
                                                                                   Member States, of the one part, and the Republic of
                                                                                   Bulgaria, of the other part, to be interpreted as precluding
Pleas in law and main arguments                                                    the refusal of an application made in the Netherlands for
                                                                                   an ordinary residence permit subject to a restriction that
                                                                                   the person concerned be ‘self-employed’ on the grounds
                                                                                   that the foreigner concerned, who is a national of
Under Article 228(1) EC, where the Court of Justice finds that                     Bulgaria, did not apply in that country or in the country
a Member State has failed to fulfil an obligation under the                        of permanent residence for a temporary residence author-
Treaty, that State is required to take the measures necessary to                   isation to be issued to that end and await the decision
comply with the judgment of the Court of Justice.                                  thereon in that country before coming to the Netherlands
                                                                                   and therefore failed not satisfy the requirement laid down
                                                                                   by Article 3.71(1) of the Vb 2000?
                                                                             2.    Does the fact that, unlike the situation concerned in the
Notwithstanding the repeated assurances of the Italian Govern-                     judgment of the Court of Justice of 27 September 2001
ment that the implementation of Directive 93/104 (2) into
                                                                                   in Case C-257/99 [Barkoci and Malik], the foreigner
Italian law was imminent, it must be found that Italy has
                                                                                   concerned already intended to work as a self-employed
not yet notified the Commission of the national measures
                                                                                   person before leaving Bulgaria for the Netherlands and
implementing that directive. It should be noted that, pursuant
                                                                                   failed to apply for such authorisation in Bulgaria despite
to Article 18(1)(a) and (c) of Directive 93/104, those measures
                                                                                   having an opportunity to do so have any bearing on the
should have been notified by 23 November 1996.
                                                                                   answer to the first question?
In those circumstances, the Commission must find that the
Italian Republic has failed to adopt the measures necessary to
comply with the judgment of the Court of 9 March 2000 in
Case C-386/98, and has thus failed to fulfil its obligations                 Reference for a preliminary ruling by the Tribunale di
under Article 228 EC.                                                        Genova — Sezione Lavoro by order of that Court of
                                                                             28 January 2003 in the case of Mario Cigliola and Others
                                                                                             against Ferrovie dello Stato SpA
Pursuant to Article 228(2) EC, the Commission requests that
the Court impose a penalty on the Italian Republic in the sum                                         (Case C-59/03)
of EUR 238 950 for each day’s delay in complying with the
Court’s judgment in Case C-386/98, with effect from the date                                          (2003/C 83/21)
of judgment in the present case.
                                                                             Reference has been made to the Court of Justice of the
( 1) OJ C 149 of 27.5.2000, p. 2.                                            European Communities by order of the Tribunale di Genova
( 2) OJ L 307 of 13.12.1993, p. 18.                                          — Sezione Lavoro (District Court, Genoa — Employment
                                                                             Division) of 28 January 2003, received at the Court Registry
                                                                             on 13 February 2003, for a preliminary ruling in the case of
                                                                             Mario Cigliola and Others against Ferrovie dello Stato SpA on
                                                                             the following question: