CELEX: C2003/101/42
Language: en
Date: 2003-04-26 00:00:00
Title: Case C-84/03: Action brought on 26 February 2003 by the Commission of the European Communities against the Kingdom of Spain

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,
 ---pagebreak--- C 101/26               EN                        Official Journal of the European Union                                           26.4.2003
            Article 1(3) thereof private-law undertakings fulfil-              for civil uses ( 1), or in any event by failing to inform the
            ling the criteria referred to in the three indents of              Commission of those provisions, the Grand-Duchy of
            the second subparagraph of Article 1(b) of each of                 Luxembourg has failed to fulfil its obligations under that
            the abovementioned directives;                                     directive;
      —     by providing an absolute exclusion from the scope            —     order the Grand-Duchy of Luxembourg to pay the costs.
            of the Public Contracts Law by Article 3(1)(c)
            thereof for cooperation agreements between public
            authorities and other public undertakings including,
            therefore, agreements which are public contracts for         Pleas in law and main arguments
            the purposes of the directives; and
                                                                         The period within which the directive had to be transposed
      —     by permitting, in Article 141(a) and Article 182(a)
            and (g) of the Public Contracts Law, the negotiated          expired on 30 June 1994.
            procedure to be used in two cases which are not
            provided for in the directives;                              (1 ) OJ L 121 of 15.5.1993, p. 20.
      the Kingdom of Spain has failed to fulfil its obligations
      under Community law;
2.    order the Kingdom of Spain to pay the costs.
                                                                         Action brought on 28 February 2003 by Commission of
Pleas in law and main arguments                                           the European Communities against Portuguese Republic
                                                                                                     (Case C-93/03)
These are apparent from the form of order sought.
                                                                                                    (2003/C 101/44)
( 1) OJ L 199 of 9.8.1993, p. 1.
( 2) OJ L 199 of 9.8.1993, p. 54.
                                                                         An action against the Portuguese Republic was brought
                                                                         before the Court of Justice of the European Communities on
                                                                         28 February 2003 by the Commission of the European
                                                                         Communities, represented by Karen Banks and Miguel França,
                                                                         acting as Agents, with an address for service in Luxembourg.
Action brought on 27 February 2003 by the Commission
of the European Communities against the Grand-Duchy                      The applicant claims that the Court should:
                         of Luxembourg
                                                                         —     declare that, by failing to adopt and bring into force the
                                                                               laws, regulations and administrative provisions necessary
                          (Case C-89/03)
                                                                               to comply with Directive 98/71/EC (1) of the European
                                                                               Parliament and of the Council of 13 October 1998 on
                         (2003/C 101/43)                                       the legal protection of designs or, in any event, by failing
                                                                               to communicate those provisions to the Commission, the
                                                                               Portuguese Republic has failed to fulfil its obligations
                                                                               under Article 19 of that directive;
An action against the Grand-Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-             —     order the Portuguese Republic to pay the costs.
ties on 27 February 2003 by the Commission of the European
Communities, represented by L. Ström and B. Stromsky, acting
as Agents, with an address for service in Luxembourg.
                                                                         Pleas in law and main arguments
The Commission of the European Communities claims that
the Court should:                                                        The period prescribed for implementation of the directive
                                                                         expired on 28 October 2001.
—     declare that, by failing to bring into force the laws,
      regulations and administrative provisions necessary to
      comply with Council Directive 93/15/EEC of 5 April                 (1 ) OJ L 289 of 28 october 1998, p. 28.
      1993 on the harmonisation of the provisions relating to
      the placing on the market and supervision of explosives