CELEX: C2003/083/19
Language: en
Date: 2003-04-05 00:00:00
Title: Case C-57/03: Action brought on 12 February 2003 by the Commission of the European Communities against the Italian Republic

5.4.2003                 EN                         Official Journal of the European Union                                        C 83/11
Action brought on 11 February 2003 by the Commission                        Action brought on 12 February 2003 by the Commission
of the European Communities against the Kingdom of                          of the European Communities against the Grand-Duchy
                                  Spain                                                              of Luxembourg
                            (Case C-55/03)                                                           (Case C-56/03)
                            (2003/C 83/17)
                                                                                                     (2003/C 83/18)
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 11 Febru-               An action against the Grand-Duchy of Luxembourg was
ary 2003 by the Commission of the European Communities,                     brought before the Court of Justice of the European Communi-
represented by Maria Patakia, Legal Adviser, and Marina                     ties on 12 February 2003 by the Commission of the European
Valverde López, a member of the auxiliary staff of its Legal                Communities, represented by Karen Banks, acting as Agent,
Service, with an address for service in Luxembourg.                         with an address for service in Luxembourg.
The applicant claims that the Court should:                                 The Commission of the European Communities claims that
                                                                            the Court should:
—      Declare that, by failing to implement Council Directives
       89/48/EEC of 21 December 1988 ( 1) and 92/51/EEC of
                                                                            —     Declare that, by failing to bring into force the laws,
       18 June 1992 (2) on a second general system for the
                                                                                  regulations and administrative provisions necessary to
       recognition of professional education and training to
                                                                                  comply with Directive 98/71/EC of the European Parlia-
       supplement Directive 89/48/EEC in connection with the
                                                                                  ment and of the Council of 13 October 1998 on the legal
       profession of air traffic controller in the civil sector, the
                                                                                  protection of designs ( 1), or in any event by failing to
       Kingdom of Spain has failed to fulfil its obligations under
                                                                                  inform the Commission of those provisions, the Grand-
       the EC Treaty;
                                                                                  Duchy of Luxembourg has failed to fulfil its obligations
—      Order the defendant to pay the costs.                                      under Article 19 of that directive;
                                                                            —     Order the Grand-Duchy of Luxembourg to pay the costs
                                                                                  of the proceedings.
Pleas in law and main arguments
Council Directives 89/48/EEC and 92/51/EEC apply, not to
diplomas awarded on completion of academic education but                    Pleas in law and main arguments
rather to diplomas awarded on completion of education and
training at the end of which the holder of such a diploma is
                                                                            The period within which the directive had to be transposed
fully qualified to practise a given profession. In consequence,
                                                                            expired on 28 October 2001.
it is not the diploma giving access to training as an air traffic
controller which must be recognised in accordance with those
directives, but the final diploma giving access to the profession           (1 ) OJ L 289 of 28.10.1998, p. 28.
of air traffic controller in the civil sector. Having regard to the
provisions of Royal Decree 3/1998, the Commission considers
that that profession is regulated in Spain for the purposes of
Article 1(d) of Directive 89/48/EEC and the settled case-law of
the Court of Justice.
The Member States are required to transpose directives into
their national legal order. The fact that there exists a law                Action brought on 12 February 2003 by the Commission
approved by Eurocontrol does not relieve Spain of that                      of the European Communities against the Italian Republic
obligation.
                                                                                                     (Case C-57/03)
( 1) Council Directive 89/48/EEC of 21 December 1988 on a general
     system for the recognition of higher-education diplomas awarded
                                                                                                     (2003/C 83/19)
     on completion of professional education and training of at least
     three years’ duration (OJ L 19 of 24 January 1989, p. 16).
( 2) Council Directive 92/51/EEC of 18 June 1992 on a second general
     system for the recognition of professional education and training
     to supplement Directive 89/48/EEC (OJ L 209 of 24 July 1992,           An action against the Italian Republic was brought before the
     p. 25).                                                                Court of Justice of the European Communities on 12 February
                                                                            2003 by the Commission of the European Communities,
                                                                            represented by Antonio Aresu, acting as Agent.
 ---pagebreak--- 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: