CELEX: C2003/135/25
Language: en
Date: 2003-06-07 00:00:00
Title: Case C-159/03 P: Appeal brought on 7 April 2003 by Jan Pflugradt against the order of the Court of First Instance of the European Communities (Fifth Chamber) of 11 February 2003 in Case T-83/02, Jan Pflugradt v European Central Bank

7.6.2003                  EN                          Official Journal of the European Union                                            C 135/17
That national of a non-Member State may not be required to                    The applicant claims that the Court should:
show any independent reason for entering into and residing in
the territory. His right, as a matter of Community law, is                    1.    Declare that, by including in the invitation to bid in
derived from the right enjoyed by the Community national in                         various tender procedures organised by the Instituto
such a way that to impose on that person prior formalities                          Nacional de la Salud para la prestación de servicios de
concerning entry into national territory constitutes not only a                     terapias respiratorias domiciliarias criteria for admission,
restriction on his (derived) right but also a restriction on the                    assessment and selection which require bidders to have,
principal right of the Community national.                                          at the time of submitting the bid, certain installations on
                                                                                    Spanish territory, or within a radius of 1 000 kilometres
                                                                                    thereof, and, prior to that, public information offices in
The Commission at the same time emphasises that, in con-                            specific locations, or that they should at the time be
formity with the general system of the Community rules on                           providing the same kind of service, the Kingdom of Spain
the issue of residence permits and, with particular regard to                       has failed to fulfil its obligations under Articles 43 and 49
Article 5 of Directive 64/221, the Member State must adopt                          EC;
the decision concerning the residence permit as soon as
possible and in any event not later than six months of the date               2.    Order the Kingdom of Spain to pay the costs.
of the application, it being understood that this maximum
period of six months is to be taken into account only in
cases where examination of the application is interrupted on
grounds of public policy.
                                                                              Pleas in law and main arguments
( 1) Directive 68/360 of 15 October 1968 on the abolition of
     restrictions on movement and residence within the Community              The Commission takes the view that the invitations to bid
     for workers of Member State and their families (OJ, English Special      relating to the tender procedures which are the subject of these
     Edition 1968 (I), p. 485).                                               proceedings are discriminatory inasmuch as they are not
( 2) Directive 73/148/EEC of 21 May 1973 on the abolition of                  justified by any overriding reason relating to the public interest
     restrictions on movement and residence within the Community
     for nationals of Member States with regard to establishment and
                                                                              nor do they observe the principle of proportionality.
     the provision of services (OJ 1973 L 172, p. 14).
( 3) Council Directive 90/365 of 28 June 1990 on the right of
     residence for employees and self-employed persons who have
     ceased their occupational activity (OJ 1990 L 180 p. 28).
( 4) Directive 64/221/EEC of the Council of 25 February 1964 on the
     coordination of special measures concerning the movement and
     residence of foreign nationals which are justified on grounds of
     public policy, public security or public health (OJ English Special
     Edition (1963-1964) I, p. 117).
                                                                              Appeal brought on 7 April 2003 by Jan Pflugradt against
                                                                              the order of the Court of First Instance of the European
                                                                              Communities (Fifth Chamber) of 11 February 2003 in
                                                                                 Case T-83/02, Jan Pflugradt v European Central Bank
                                                                                                       (Case C-159/03 P)
                                                                                                         (2003/C 135/25)
Action brought on 7 April 2003 by the Commission of
the European Communities against the Kingdom of Spain
                           (Case C-158/03)                                    An appeal against the order of the Court of First Instance of
                                                                              the European Communities (Fifth Chamber) of 11 February
                                                                              2003 in Case T-83/02, Jan Pflugradt v European Central Bank,
                           (2003/C 135/24)                                    was brought before the Court of Justice of the European
                                                                              Communities on 7 April 2003 by Jan Pflugradt, represented
                                                                              by Dr Norbert Pflüger, 44 Kaiserstrasse, D-60329 Frankfurt
                                                                              am Main, with an address for service in Luxembourg.
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 7 April
2003 by the Commission of the European Communities,                           The appellant claims that the Court, at the same time as it sets
represented by Gregorio Valero Jordana and Klaus Wiedner, of                  aside the order appealed against, should:
its Legal Service, acting as Agents, with an address for service
in Luxembourg.                                                                1.    Declare the action admissible;
 ---pagebreak--- C 135/18                 EN                        Official Journal of the European Union                                            7.6.2003
2.    Annul the respondent ECB’s formal warning of 28 Febru-               Reference for a preliminary ruling by the Commission de
      ary 2002;                                                            Conciliation et d’Expertise Douaniere (France) by decision
                                                                           of that Court of 18 March 2003 in the case of Customs
                                                                               against CAFOM and SAMSUNG Electronics France
3.    Order the defendant to pay the costs.
                                                                                                    (Case C-161/03)
Pleas in law and main arguments
                                                                                                    (2003/C 135/26)
The Court of First Instance of the European Communities
failed to recognise that the contested measure is an act
adversely affecting the person concerned against which an
action lies under Article 42(1) of the Conditions of Employ-
ment for staff of the ECB.                                                 Reference has been made to the Court of Justice of the
                                                                           European Communities by decision of the Commission de
                                                                           Conciliation et d’Expertise Douaniere (Customs Arbitration
                                                                           and Advisory Committee) (France) of 18 March 2003, received
                                                                           at the Court Registry on 8 April 2003, for a preliminary ruling
Contrary to the findings of the order under appeal the                     in the case of Customs against CAFOM and SAMSUNG
contested measure is not merely a preparatory act in a multi-              Electronics France on the following questions:
stage procedure which may culminate in dismissal. Rather it is
a direct and immediate infringement (a) of the general right to
protection of personality and (b) of the applicant’s right to
protection of data.                                                        1.    Is Article 27 of Protocol 4 annexed to the EC/Hungary
                                                                                 Agreement of 13 March 1993 to be interpreted as
                                                                                 meaning that the authorities of the importing State must
(a)   First the applicant’s general right to protection of person-               apply the preferential arrangement established by that
      ality is directly and immediately affected because the ECB                 Agreement when the authorities of the exporting State,
      did not confront the applicant at the appropriate time                     to whom they have addressed queries concerning specific
      with the allegations which formed the subject-matter of                    facts on which the granting of the arrangement depends,
      a reproach. The applicant was thus precluded from                          merely declare that the products to which the certificates
      responding to the allegations and obtaining immediate                      of origin which they have issued relate fulfil the conditions
      clarification in regard to them. Secondly, the reproach is                 for granting the arrangement?
      said to be based on inaccurate factual assertions, thus
      constituting a direct and immediate infringement of the
      general right to protection of personality.
                                                                           2.    Is a reply furnished by the authorities of the exporting
                                                                                 State after the expiry of the 10-month period referred to
                                                                                 in Article 27(7) of the [Protocol] to be taken into account
(b)   In the contested order the Court of First Instance failed to               in determining whether the goods in question qualify for
      recognise the direct and immediate infringement of the                     the preferential arrangement?
      applicant’s right to data protection. The applicant’s right
      to be informed, prior to collection of personal data
      concerning him, of the purpose pursued thereby was
      infringed by the contested act.                                      3.    May it be inferred from Article 27(2) of the [Protocol]
                                                                                 that, if the request for verification is made by the
                                                                                 authorities of the importing State more than two years
                                                                                 after the disputed operations, the fact that the authorities
                                                                                 of the exporting State are unable to carry out that
In particular, the Court of First Instance failed to recognise that              investigation since they have not kept the necessary
that infringement is not remedied even where at the end of the                   documents must mean that the goods qualify for the
procedure under Article 2.2.5 of the ECB Staff Rules it is                       preferential arrangement?
decided not to proceed with dismissal.