CELEX: C1998/234/36
Language: en
Date: 1998-07-25 00:00:00
Title: Appeal brought on 25 May 1998 by Anthony Goldstein against the order made on 16 March 1998 by the Third Chamber of the Court of First Instance of the European Communities in Case T-235/95, between Anthony Goldstein and the Commission of the European Communities (Case C-199/98 P)

C 234/18              EN                 Official Journal of the European Communities                                    25.7.98
The Commission claims that the Court should:                        ruling in the case of 1) Mr G. Everson and 2) Mr T. J.
                                                                    Barrass against 1) Secretary of State for Trade and
                                                                    Industry and 2) Bell Lines Ltd (in liquidation), on the
Ð declare that, by not taking the necessary measures to             following question:
     comply with the judgment of the Court of Justice of
     23 March 1995 in Case C-365/93 (1) and, in particular,         Where
     by not having yet adopted, and communicated to the
     Commission, the laws, regulations and administrative           (i)   an employee works in one Member State for an
     provisions necessary to comply fully with Council                    employer incorporated in another Member State; and
     Directive 89/48/EEC (2) of 21 December 1988 on a
     general system for the recognition of higher-education         (ii) the employer has a branch in the Member State in
     diplomas awarded on completion of professional                       which the employee works, and that branch is
     education and training of at least three years'                      registered under the national provisions implementing
     duration, the Hellenic Republic has failed to fulfil its             Council Directive 89/666/EEC (1) (the Eleventh
     obligations under Article 171 of the EC Treaty;                      Company Law Directive), although it is not
                                                                          incorporated and does not have legal personality
Ð order the Hellenic Republic to pay the costs.                           separate from that of the employer, in that Member
                                                                          State; and
Pleas in law and main arguments adduced in support:                 (iii) both the employer and the employee are required to
                                                                          make social security contributions in the Member
                                                                          State in which the employee works;
Under Article 171 of the EC Treaty, if a Member State
fails to take, within the time-limit laid down by the               under Article 3 of Council Directive 80/987/EEC (2) of
Commission, the necessary measures to comply with a                 20 October 1980 on the approximation of the laws of the
judgment in which the Court has found that the Member               Member States relating to the protection of employees in
State in question failed to fulfil its obligations under the        the event of the insolvency of their employer, which
Treaty, the Commission may bring the case before the                guarantee institution is responsible for the payments
Court of Justice. In so doing the Commission is to specify          thereby due; is it
the amount of the lump sum or penalty payment to be
paid by the Member State concerned which it considers               (a) the guarantee institution in the Member State in
appropriate in the circumstances. The failure fully to                    which insolvency proceedings have been commenced,
transpose Directive 89/48/EEC into Greek law constitutes                  or
a breach of the fundamental principles of the free
movement of persons and the freedom to provide services,
                                                                    (b) the guarantee institution in the Member State in
and three years have already passed since the Court gave
                                                                          which the employee works and in which the
judgment in Case C-365/93. In view of the seriousness and
                                                                          employer has a permanent commercial presence?'
duration of the breach and the need to ensure that the
sanction has a deterrent effect, the Commission invites the
                                                                    (1) Eleventh Council Directive 89/666/EEC of 21 December 1989
Court to impose a penalty payment of ECU 41 000 per                     concerning disclosure requirements in respect of branches
day from the day on which the Hellenic Republic is                      opened in a Member State by certain types of company
notified of the judgment of the Court in this case until the            governed by the law of another State (OJ L 395 of
day on which the breach ceases.                                         30.12.1989, p. 36).
                                                                    (2) OJ L 283 of 20.10.1980, p. 23.
(1) Case C-365/93 Commission v Greece [1995] ECR I-499.
(2) OJ L 19 of 24.1.1989, p. 16.
                                                                    Appeal brought on 25 May 1998 by Anthony Goldstein
                                                                    against the order made on 16 March 1998 by the Third
                                                                    Chamber of the Court of First Instance of the European
Reference for a preliminary ruling by the Industrial                Communities in Case T-235/95, between Anthony
Tribunal, Bristol, by order of that court of 6 May 1998,                   Goldstein and the Commission of the European
in the case of 1) Mr G. Everson and 2) Mr T. J. Barrass                                       Communities
against 1) Secretary of State for Trade and Industry and 2)                                (Case C-199/98 P)
                Bell Lines Ltd (in liquidation)
                                                                                             (98/C 234/36)
                       (Case C-198/98)
                        (98/C 234/35)                               An appeal against the order made on 16 March 1998 by
                                                                    the Third Chamber of the Court of First Instance of the
                                                                    European Communities in Case T-235/95, between
Reference has been made to the Court of Justice of the              Anthony Goldstein and the Commission of the European
European Communities by an order of the Industrial                  Communities, was brought before the Court of Justice of
Tribunal, Bristol, of 6 May 1998, which was received at             the European Communities on 25 May 1998 by Anthony
the Court Registry on 25 May 1998, for a preliminary                Goldstein, a medical practitioner, represented by Mr
 ---pagebreak--- 25.7.98              EN                 Official Journal of the European Communities                                  C 234/19
Raymond St John Murphy, Solicitor, of Merriman White,              on 28 May 1998 by the Commission of the European
solicitors, 3 King's Bench Walk, Inner Temple, London              Communities, represented by Maria Patakia, of its Legal
EC4Y 7DJ.                                                          Service, acting as Agent, with an address for service in
                                                                   Luxembourg at the office of Carlos Gómez de la Cruz,
The appellant claims that the Court should:                        Wagner Centre, Kirchberg.
Ð set aside the order of the Court of First Instance of
    16 March 1998 in Case T-235/95 Goldstein v.
                                                                   The applicant claims that the Court should:
    Commission (not published in the European Court
    Reports) in which the Court dismissed the application
    for an order seeking the annulment of the
    Commission's decision of 16 October 1995 refusing to           1. declare that, by requiring, pursuant to the second
    adopt interim measures to protect the applicant's                  paragraph of Article 3(3)(c) and (d) of the Royal
    legitimate interests.                                              Decree on Air Traffic of 15 March 1954, that
                                                                       Community operators be resident or established for
Ð order the Commission to pay the costs including those                one year in Belgium in order to register their aircraft
    in the proceedings before the Court of First Instance.             there and by refusing to authorize flights requested by
                                                                       Community operators, thus unjustifiably or excessively
Pleas in law and main arguments adduced in support:                    hindering the temporary or permanent provision of
                                                                       services in the field of air traffic other than for
The appellant maintains that no Advocate General was                   transport, Belgium has failed to fulfil its obligations
heard by the Court of First Instance and that the Court of             under Articles 6, 52 and 59 of the EC Treaty;
First Instance has thus breached Articles 111 and 114 of
its Rules of Procedure.
                                                                   2. order the Kingdom of Belgium to pay the costs.
By order of the Court of First Instance of 10 March 1997,
the decision on the plea of inadmissibility was reserved for
the final judgment on the ground that in the circumstances
of the case the procedure on the merits should be                  Pleas in law and main arguments adduced in support:
continued before a decision was taken on the plea of
inadmissibility raised by the defendant.
                                                                   Ð Infringement of Article 59 of the EC Treaty: in dealing
The appellant asserts that the Court of First Instance has             with applications for flight authorizations from certain
no power to invalidate a decision of the Court of First                Community operators wishing to provide aerial
Instance unless exceptional situations exist and that, in              photography services over Belgium, the competent
ruling in the plea of admissibility without examining the              authorities, after having moreover explained that in
merits of the case, the Court of First Instance robbed him             any event authorization could be granted only for a
of a hearing and a report of the Judge-Rapporteur                      limited period and only for very specific purposes,
containing the factual and legal arguments and thereby                 ended up by automatically refusing such authorization.
constituted a denial of justice in so far as he had a                  The justification based on an absence of reciprocity
legitimate expectation to obtain a judgment in accordance              reveals a clear attitude on the part of the
with the Treaty obligations of the Court of First Instance.            administration which is contrary to the Community
                                                                       principle of non-discrimination. Furthermore, the
Furthermore the appellant claims that the contested order              principle of the freedom to provide services requires,
distorted the clear sense of the evidence in order to                  moreover, that decisions, pursuant to Article 51 of the
conceal the existence of a medical licence fraud. The                  Royal Decree of 15 March 1954, as to the legal,
appellant also claims that the contested order                         financial and technical standing of a foreign individual
demonstrates that the Court of First Instance is guilty of             or undertaking should be taken by the Member State
misuse of power.                                                       of origin and that, therefore, the assessment by the
                                                                       authorities of the host Member State may not
The appellant asserts that the reasoning in the contested              disregard the requirements which the same operator
order is legally defective as it is not based on an                    already fulfils in its country of origin.
objectively determined situation in fact and law.
                                                                   Ð Infringement of Articles 6 and 52 of the EC Treaty:
                                                                       the provisions of the Royal Decree of 1954 cited in the
                                                                       application are not compatible with Articles 6 and 52
Action brought on 28 May 1998 by the Commission of                     of the EC Treaty inasmuch as they discriminate
the European Communities against the Kingdom of                        against foreign natural and legal persons and hinder
                           Belgium                                     their establishment by categorically precluding the
                                                                       registration of any aircraft belonging to foreign
                       (Case C-203/98)
                                                                       persons or companies during the first year of residence
                        (98/C 234/37)                                  in Belgium.
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities