CELEX: C1998/278/23
Language: en
Date: 1998-09-05 00:00:00
Title: Action brought on 16 June 1998 by the Commission of the European Communities against the French Republic (Case C-221/98)

5.9.98                 EN               Official Journal of the European Communities                                   C 278/13
Ð the view taken by the Court of First Instance,                       programmes provided for by Article 6 of Council
     according to which the Commission had three months                Directive 91/157/EEC (1) of 18 March 1991 on
     in which to complete its examination, is consistent               batteries and accumulators containing certain
     neither with the Aids Code nor with the need,                     dangerous substances, the Hellenic Republic has failed
     recognised by case-law, to complete that examination              to fulfil its obligations under the Treaty and that
     expeditiously,                                                    Directive,
Ð infringement of Article 6(6) of the Steel Aids Code and          Ð order the Hellenic Republic to pay the costs.
     breach of the general principles of law relating to aid:
     in proceeding on the basis of the legally erroneous
     premise that the Commission's competence is limited           Pleas in law and main arguments adduced in support:
     in time, the Court of First Instance disregarded the
     case-law of the Court of Justice, according to which a
                                                                   Under the third paragraph of Article 189 of the EC Treaty,
     definitive order for the repayment of aid must
                                                                   directives are binding, as to the result to be achieved,
     invariably be preceded by a conclusive opinion of the
                                                                   upon each Member State to which they are addressed.
     Commission finding the aid substantively illegal. By
                                                                   Under the first paragraph of Article 5 of the Treaty,
     concluding from a failure to comply with a time-limit
                                                                   Member States are to take all appropriate measures,
     Ð which not even the Commission regards as a
                                                                   whether general or particular, to ensure fulfilment of the
     prescriptive deadline, and which it has in numerous
                                                                   obligations arising out of the Treaty or resulting from
     parallel cases treated as a mere administrative deadline
                                                                   action taken by the institutions of the Community.
     for notification purposes Ð that the aid was
     substantively illegal, the Court of First Instance
     unlawfully confused the formal and the substantive            It is not disputed that, up until the time when this
     aspects of the aid procedure,                                 application was drafted, the Hellenic Republic still had
                                                                   not drawn up programmes for the period from 18 March
Ð breach of the prohibition of discrimination: in dealing          1993 to 18 March 1997 as provided for by Article 6 of the
     extremely summarily with this head of claim, the              Directive, nor had it communicated to the Commission
     Court of First Instance failed to comment on the              programmes to secure the objectives laid down by that
     comparison made by the appellant between its own              Article.
     situation and the aid case of EKO Stahl,
                                                                   The Commission is therefore obliged to find that the
Ð breach of the principle of protection of legitimate              Hellenic Republic has failed to fulfil its obligations under
     expectations,                                                 the Treaty and Directive 91/157/EEC.
Ð breach of the obligation to provide a statement of               (1) OJ L 78, 26.3.1991, p. 38.
     reasons.
(1) OJ C 166, 30.5.1998, p. 14.
(2) Decision No 3855/91/ECSC (OJ L 362, 31.12.1991, p. 57).
                                                                   Action brought on 16 June 1998 by the Commission of
                                                                     the European Communities against the French Republic
                                                                                          (Case C-221/98)
Action brought on 10 June 1998 by the Commission of                                         (98/C 278/23)
 the European Communities against the Hellenic Republic
                        (Case C-215/98)
                                                                   An action against the French Republic was brought before
                         (98/C 278/22)                             the Court of Justice of the European Communities on
                                                                   16 June 1998 by the Commission of the European
                                                                   Communities, represented by Marie Wolfcarius, of its
An action against the Hellenic Republic was brought                Legal Service, acting as Agent, with an address for service
before the Court of Justice of the European Communities            in Luxembourg at the office of Carlos Gómez de la Cruz,
on 10 June 1998 by the Commission of the European                  Wagner Centre, Kirchberg.
Communities, represented by Maria Kondou-Durande,
of its Legal Service, with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, of            The Commission of the European Communities claims
its Legal Service, Wagner Centre, Kirchberg.                       that the Court should:
The Commission claims that the Court should:                       1. declare that:
Ð declare that, by failing to adopt or to communicate                  Ð by not allowing students, who are nationals of
     to the Commission within the prescribed period the                     other Member States and seek to have their right
 ---pagebreak--- C 278/14              EN                 Official Journal of the European Communities                                      5.9.98
        to reside in France recognised, to assure the                  A fortiori, the fact that the French rules impose yet
        authorities that they have sufficient resources                further limits on the types of resources which can be
        solely by means of the declaration provided for by             taken into account when a residence permit is renewed
        the Directive, or by such alternative means chosen             is also contrary to the Directive. For the same reasons,
        by the student as are at least equivalent,                     the requirement that the student declare that he has at
                                                                       his disposal at least a certain amount established by
                                                                       the decree goes beyond what is permitted by the
    Ð by limiting the type and characteristics of the                  Directive, which leaves to the student responsibility for
        resources which may be taken into account as                   assessing the amount he will need to live and study
        evidence that the beneficiaries of Directive 90/364/           without becoming a burden on the social assistance
        EEC (1) meet the requirement that they have                    system of the host Member State,
        sufficient resources,
                                                                    Ð Incorrect transposition of Directive 90/364/EEC into
    Ð by limiting the types of sickness insurance which
                                                                       national law
        are taken into account as evidence that the
        beneficiaries of Directives 90/364/EEC, 90/365/
        EEC (2) and 93/96/EEC (3) meet the requirement
                                                                       Whilst Member States may, under paragraphs 2 and 3
        that they are covered by sickness insurance, and
                                                                       of Article 1 of the Directive, determine the minimum
                                                                       resources required to enjoy a right of residence, it
    Ð by stipulating that the competent authorities must               is not permissible for them to determine the
        check whether the beneficiaries of Directives 90/              characteristics or nature of those resources. The
        364/EEC, 90/365/EEC and 93/96/EEC are still able               requirement of regular resources seems to preclude
        to provide a certificate of cover under a sickness             consideration of factors such as:
        insurance scheme, where the first certificate is
        valid for a shorter period than the residence                  Ð occupation of a house as owner or made available
        permit,                                                             free of charge by the owner,
                                                                       Ð paid work (in itself too unimportant or minor to
    the French Republic has failed to fulfil its obligations
                                                                            count as employment within the meaning of
    under Directive 90/364/EEC, Directive 90/365/EEC
                                                                            Article 48 of the EC Treaty),
    and Directive 93/96/EEC.
                                                                       Ð access to irregular resources (such as royalties) or
2. order the French Republic to pay the costs.                              resources provided by a relative, cohabitee or
                                                                            friend who can act as guarantor,
Pleas in law and main arguments adduced in support:                    Ð access to a small amount of capital (not producing
                                                                            income),
Ð Incorrect transposition of Directive 93/96/EEC into
    national law                                                       Ð absence abroad for part of the year.
                                                                       The Commission is aware that such situations may
    Directive 93/96/EEC prohibits Member States from                   give rise to difficulties where it is a matter of assessing
    requiring other proof or documents relating to                     the value of various resources to determine whether
    resources where a foreign student has chosen to make               their total is higher than the minimum level fixed
    the declaration provided for in Article 1. That                    under subparagraphs 2 and 3 of Article 1(1) of
    interpretation Ð which simply reflects the actual                  Directive 90/364/EEC. However, this is a practical
    wording of the relevant passage of the provision in                difficulty which does not in itself allow certain
    question Ð is confirmed by the structure and origin of             resources to be disregarded because of their type or
    the Directive and by comparison with Directives 90/                characteristics,
    364/EEC and 90/365/EEC.
                                                                    Ð Incorrect transposition of the three Directives into
    Although an affidavit' in a form determined by the                national law as regards the requirement of sickness
    authorities is not in itself contrary to Directive 93/96/          insurance cover against all risks in the host Member
    EEC, the requirement that a student declare that he                State
    has adequate, regular resources, payment of which is
    not liable to be interrupted or reduced by a change of
    residence', clearly goes beyond what is permissible                No doubt the three types of documentary evidence
    under the Directive. Moreover, it is a declaration                 required by the French rules cover the vast majority of
    which certain students will not always be able to                  cases. Moreover, in certain situations, beneficiaries
    make, if, for example, they intend to supplement their             can obtain cover under French sickness insurance
    resources by means of some form of paid employment.                schemes. However, the Commission considers that
 ---pagebreak--- 5.9.98                 EN                   Official Journal of the European Communities                                       C 278/15
     these provisions, which list exhaustively the types of                 of occupational conditions to be undertaken in an
     sickness insurance allowed, do not cover all potential                 equal treatment case should be made by way of an
     circumstances and are therefore too restrictive,                       overall assessment of all the factors en bloc or by way
                                                                            of a point-for-point comparison as in equal pay cases.
Ð Incorrect transposition of the three directives into
     national law as regards verification of continued                      It can be assumed in answering the question that
     sickness insurance cover                                               the transformationsmodel' (reorganisation scheme
                                                                            for medical specialists' practices, hereinafter the
     Whilst, under Article 3 of Directives 90/364/EEC and                   reorganisation scheme')/agreement assessed en bloc
     90/365/EEC and under Article 4 of Directive 93/96/                     and as a whole is neutral as regards sex in both its
     EEC, a right of residence can be revoked when the                      effect and purpose.
     person concerned no longer meets the conditions laid
     down, in particular that regarding sickness insurance
     cover, that provision cannot be construed so as                        It can further be assumed that the reorganisation
     to allow active and constant monitoring by the                         scheme/agreement contains provisions which, viewed
     authorities responsible for issuing residence permits                  in isolation, result in sex bias, inasmuch as it is noted
     of the position of the beneficiaries of Directives 90/                 that that biased effect, with regard to some provisions,
     364/EEC, 90/365/EEC and 93/96/EEC. Any other                           is predominantly experienced by female medical
     approach would be contrary, not only to those                          specialists and, with regard to other provisions, is
     Directives, but, more fundamentally, to the principles                 predominantly       experienced       by     male    medical
     embodied in Article 8a of the EC Treaty.                               specialists.
(1) Council Directive 90/364/EEC on the right of residence (OJ         2. If the answer to question 1 is in the affirmative, a
    L 180, 13.7.1990, p. 26).                                               ruling is requested as to how far considerations
(2) Council Directive 90/365/EEC on the right of residence for
                                                                            relating to budgetary safeguards, savings and planning
    employees and self-employed persons who have ceased their
    occupational activity (OJ L 180, 13.7.1990, p. 28).                     as regards medical practices may be treated as
(3) Council Directive 93/96/EEC on the right of residence for               objective and valid considerations such as to make it
    students (OJ L 317, 18.12.1993, p. 59).                                 acceptable that proportionately more women than
                                                                            men are affected by the provision in question.
                                                                       3. In view of the applicant's age (she was born in 1939),
                                                                            can the consideration for goodwill which the applicant
                                                                            should obtain when she gives up her practice on
Reference for a preliminary ruling by the éstre Landsret                    reaching retirement age be likened to an employee's
by a decision of that court of 4 June 1998 in the case of                   pension savings?
Birgitte Jùrgensen v. Foreningen af Speciallñger and Syge-
                 sikringens Forhandlingsudvalg
                         (Case C-226/98)                               4. If the Court of Justice replies to question 3 in
                                                                            the affirmative, clarification is sought as to the
                           (98/C 278/24)                                    repercussions for the answer to question 1 if one
                                                                            aspect of the disadvantage to which the provision in
                                                                            question gives rise is lower consideration for goodwill
Reference has been made to the Court of Justice of the                      when a practice is relinquished, and thereby worse
European Communities by order of the éstre Landsret                         pension insurance, if account is taken of the fact that
(Eastern Regional Court) of 4 June 1998, which was                          in Case C-297/93 Grau-Hupka [1994] ECR 5535,
received at the Court Registry on 24 June 1998, for a                       paragraph 27, it was held that the Member States are
preliminary ruling in the case of Birgitte Jùrgensen v. Fore-               not obliged to grant advantages in respect of old-age
ningen af Speciallñger and Sygesikringens Forhandlings-                     pension schemes to persons who have brought-up
udvalg on the following questions:                                          children or to provide benefit entitlements where
                                                                            employment has been interrupted in order to bring up
                                                                            children.
1. The Court of Justice is asked to clarify how
     an assessment as to whether there is indirect
     discrimination on grounds of sex should be                        (1) On the implementation of the principle of equal treatment for
     undertaken in a case concerning equal treatment under                 men and women as regards access to employment, vocational
     Council Directive 76/207/EEC (1) of 9 February 1976                   training and promotion, and working conditions (OJ L 39,
                                                                           14.2.1976, p. 40).
     and Council Directive 86/613/EEC (2) of 11 December
                                                                       (2) On the application of the principle of equal treatment between
     1986.                                                                 men and women engaged in an activity, including agriculture,
                                                                           in a self-employed capacity, and on the protection of self-
                                                                           employed women during pregnancy and motherhood (OJ
     In view of the fact that under the settled case-law of                L 359, 19.12.1986, p. 56).
     the Court of Justice in equal pay cases a comparison
     should be made on a point-for-point-basis,
     clarification is requested as to whether the comparison