CELEX: C2003/226/15
Language: en
Date: 2003-09-20 00:00:00
Title: Case C-313/03: Action brought on 23 July 2003 by the Commission of the European Communities against the Italian Republic

20.9.2003             EN                          Official Journal of the European Union                                            C 226/9
Action brought on 18 July 2003 by the Italian Republic                   1.   Where the period for calculation of the basis of contribu-
    against Commission of the European Communities                            tion for unemployment benefit coincided with exercise of
                                                                              the right to reduced working hours and salary in order to
                        (Case C-307/03)                                       care for a child, does the correct transposition of clause 2
                                                                              (8) of the framework agreement contained in Directive
                        (2003/C 226/13)                                       96/34 (1) into the domestic law of Member States, and
                                                                              specifically into Spanish law, require those States to adopt
An action against the Commission of the European                              in social security legislation relating specifically to unem-
Communities was brought before the Court of Justice of the                    ployment benefit measures to offset the effect of the lower
European Communities on 18 July 2003 by the Italian                           contribution to the social security scheme as a result of the
Republic, represented by Ivo M. Braguglia, acting as Agent,                   reduced salary received by a worker exercising that right,
assisted by Maurizio Fiorilli, Avvocato dello Stato.                          so as not to cause the worker's unemployment benefit to
                                                                              be reduced?
The applicant claims that the Court should:
                                                                         2.   Should the preceding question be answered affirmatively,
—     Annul the financial correction imposed against Italy by
      Commission Decision No C(2003) 1539 final of 15 May
      2003.                                                                   Can failure to comply with the duty under clause 2(8) of
                                                                              the framework agreement contained in Directive 96/34,
Pleas in law and main arguments                                               once the time-limit established in Article 2 of the Directive
                                                                              for its transposition has expired, be remedied directly by
First, the applicant claims that the spot checks were of poor                 the national court in the proceedings in which these
quality: it disagrees with the findings of the Commission's                   preliminary questions are raised, in the decision adopted
officials as regards the procedure and effectiveness of the                   to determine those proceedings?
checks carried out.
As regards failure to repay aid in respect of non-eligible areas,
the applicant maintains that financial corrections may not be            (1) Council Directive 96/34/EC of 3 June 1996 on the framework
made where the Member State has kept to measures agreed                      agreement on parental leave concluded by UNICE, CEEP and the
with the Commission and improved checking procedures, as                     ETUC (OJ L 145 of 19.6.1996, p. 4).
admitted by the Commission and as shown by the fact that it is
sought to confer retroactive effectiveness to the scope of check-
ing procedures which have been gradually improved.
Finally, the applicant maintains that the contested decision is
vitiated by misapplication of Article 9(3) of Regulation                 Action brought on 23 July 2003 by the Commission of the
No 3887/92 (1) (areas to be used for calculation of the aid).                European Communities against the Italian Republic
                                                                                                   (Case C-313/03)
                                                                                                   (2003/C 226/15)
(1) OJ L 391, 31.12.1992, p. 36.
                                                                         An action against the Italian Republic was brought before the
                                                                         Court of Justice of the European Communities on 23 July 2003
                                                                         by the Commission of the European Communities, represented
                                                                         by M.-J. Jonczy, acting as Agent.
Reference for a preliminary ruling by the Juzgado de lo
Social No 33 by order of that Court of 8 July 2003 in the                The applicant claims that the Court should:
case of Ana Isabel López Gil against Instituto Nacional de
                         Empleo (Inem)                                   —     find that, by failing to adopt the laws, regulations and
                                                                               administrative provisions necessary to comply with Council
                        (Case C-309/03)                                        Directive 1999/63/EC (1) of 21 June 1999 concerning the
                                                                               Agreement on the organisation of working time of seafarers
                        (2003/C 226/14)                                        concluded by the European Community Shipowners"
                                                                               Association (ECSA) and the Federation of Transport
Reference has been made to the Court of Justice of the                         Workers" Unions in the European Union (FST) — Annex:
European Communities by order of the Juzgado de lo Social                      European Agreement on the organisation of working time of
(Social Court) No 33 of 8 July 2003, received at the Court                     seafarers, or in any event, by failing to communicate any
Registry on 23 July 2003, for a preliminary ruling in the case of              such provisions to the Commission, the Italian Republic has
Ana Isabel López Gil against Instituto Nacional de Empleo                      failed to satisfy its obligations under Article 3(1) of that
(Inem) on the following questions:                                             directive;
 ---pagebreak--- C 226/10                EN                          Official Journal of the European Union                                          20.9.2003
—     order the Italian Republic to pay the costs.                          represented by Claudia Schmidt of the Commission's Legal
                                                                            Service, with an address for service in Luxembourg.
Pleas in law and main arguments
                                                                            The applicant claims that the Court should:
The time-limit for implementing the directive expired on
30 June 2002.
                                                                            1.    Rule that the imposition of a ban on the use of a section of
                                                                                  the A 12 Inntal motorway between kilometre 20,359 in
                                                                                  the Kundl local authority area and kilometre 66,780 in the
                                                                                  Ampass local authority area by heavy goods vehicles with a
(1) OJ L 167 of 2.7.1999, p. 33.                                                  total weight exceeding 7,5 tonnes which carry certain
                                                                                  goods is incompatible with the Republic of Austria's obli-
                                                                                  gations under Articles 1 and 3 of Council Regulation (EEC)
                                                                                  No 881/92 (1), Articles 1 and 6 of Council Regulation
                                                                                  (EEC) No 3118/93 (2) and Articles 28 EC to 30 EC;
Reference for a         preliminary ruling by the Tribunal                  2.    Order the Republic of Austria to pay the costs of the
Administratif de       Paris by judgment of that Court of                         proceedings.
3 July 2003 in          the case of Serge Briheche against
Minister for the        Interior, Internal Security and Local
                             Freedoms                                       Pleas in law and main arguments
                          (Case C-319/03)
                                                                            On 27 May 2003, the First Minister of the Land of Tyrol imposed,
                          (2003/C 226/16)                                   on the basis of the Austrian Immissionsschutzgesetz — Luft
                                                                            (Immission Control Act — air), a ban on the use by heavy
                                                                            goods vehicles carrying certain goods of a 46 km stretch of the
Reference has been made to the Court of Justice of the
                                                                            A 12 Inntal motorway. This absolute ban applies to the vehicles
European Communities by judgment of the Tribunal
                                                                            covered with immediate effect from 1 August 2003 for an inde-
Administratif de Paris (Administrative Court, Paris) of 3 July
                                                                            finite period.
2003, received at the Court Registry on 24 July 2003, for a
preliminary ruling in the case of Serge Briheche against Minister
for the Interior, Internal Security and Local Freedoms on the               The Commission takes the view that, in imposing this ban, the
following question:                                                         Republic of Austria has acted in breach of the abovementioned
                                                                            obligations of primary and secondary law.
                                                                            The transit ban or the ‘pressure to use railways’ creates addi-
Does Directive 76/207/EEC of 9 February 1976 (1) preclude                   tional delays and costs for the heavy goods vehicles and under-
France from maintaining in force the provisions of Article 8 of             takings concerned. The ban thus constitutes a manifest obstacle
Law No 75-3 of 3 January 1975, as amended by Law                            to the free movement of goods. The approach chosen by the
No 79-569 of 7 July 1979 and Law No 2001-397 of 9 May                       Republic of Austria in applying the ban only to transit traffic,
2001, concerning widows who have not remarried?                             approximately 80 % of which is effected by foreign hauliers,
                                                                            thus entails preferential treatment of the national/local move-
                                                                            ment of goods or, in other words, indirect discrimination of the
                                                                            transport of goods by foreign carriers. That discrimination
                                                                            cannot be justified on the ground of environmental protection.
(1) Council Directive 76/207/EEC of 9 February 1976 on the imple-           For that reason alone, it must be found that the Republic of
    mentation of the principle of equal treatment for men and women         Austria has infringed Article 28 EC.
    as regards access to employment, vocational training and promo-
    tion, and working conditions (OJ L 39, 14.2.1976, p. 40).
                                                                            The Commission argues alternatively that, even if the measure
                                                                            is not discriminatory, the argument based on protection of the
                                                                            environment cannot be accepted because the Austrian measure
                                                                            does not meet the requirements of the principle of proportion-
                                                                            ality. There are less stringent measures, that is to say, measures
                                                                            which appear equally suitable to achieve the aim sought but
Action brought on 24 July 2003 by the Commission of the                     which present less of an obstacle to the free movement of
  European Communities against the Republic of Austria                      goods. Since it cannot be justified on the grounds of environ-
                                                                            mental protection, the measure ultimately infringes Article 28 EC.
                          (Case C-320/03)
                          (2003/C 226/17)                                   It is clear from Regulation (EEC) No 881/92 and Regulation
                                                                            (EEC) No 3118/93 that, in principle, conditions for the free
An action against the Republic of Austria was brought before                circulation of goods transport other than those laid down in
the Court of Justice of the European Communities on 24 July                 those regulations are impermissible. There is no exception
2003 by the Commission of the European Communities,                         limiting the scope of that principle. There has thus been a