CELEX: C2003/135/19
Language: en
Date: 2003-06-07 00:00:00
Title: Case C-138/03: Action brought on 27 March 2003 by Italian Republic against Commission of the European Communities

7.6.2003                 EN                       Official Journal of the European Union                                          C 135/13
      information, which is intended to protect ‘the interests of               Article 9(1) of the directive (for which no provision is
      shareholders and third parties’, permits only shareholders                made in the Austrian legal system) — save in cases of
      and creditors to apply for the imposition of penalties, thus              urgency — where appeals against its decisions may be
      depriving third parties generally of effective protection?                lodged with the courts of public law only subject to the
                                                                                following limitations: such appeals have no suspensory
4.    Must the directives mentioned, and in particular the                      effect from the outset and the courts are not barred from
      provisions of Article 44(2)(g) of the Treaty Establishing                 taking a decision on appropriateness and are able merely
      the European Community, Article 2(1)(f) and Article 6 of                  to annul the contested decision. Moreover, is one court
      the First Directive and Article 2(2), (3) and (4) of the                  (the Verwaltungsgerichtshof — the Higher Administrative
      Fourth Directive, as amended by Directive 83/349/EEC                      Court) limited, as regards the findings of the facts, to
      and Directive 90/605/EEC, be interpreted as precluding                    an examination of conclusiveness, and the other (the
      the legislation of a Member State under which, in the case                Verfassungsgerichtshof — the Constitutional Court) also
      of breach of the duty to publish true and fair company                    limited to an examination of the infringement of rights
      information, which is intended to protect ‘the interests of               guaranteed by the constitution?
      shareholders and third parties’, lays down rules for the
      prosecution of offences and a system of penalties which             2.    Are the guarantees of judicial protection provided by
      are differentiated, reserving to cases where material                     Articles 8 and 9(1) of the directive referred to in
      damage or loss is caused to shareholders or creditors the                 paragraph 1 to be applied to Turkish nationals who enjoy
      right to submit a complaint and apply for the imposition                  legal status under Article 6 or Article 7 of Decision No 1/
      of sanctions and reserving to such cases sanctions which                  80 of the Association Council — set up by the Agreement
      are serious and effective?                                                establishing an Association between the European Econ-
                                                                                omic Community and Turkey — of 19 September 1980
                                                                                on the development of the Association (‘the Association
( 1) OJ, English Special Edition 1968 (I), p. 41.                               Council decision’)?
( 2) OJ L 222 of 14.08.1978, p. 11.
( 3) OJ L 193 of 18.07.1983, p. 1.
( 4) OJ L 317 of 16.11.1990, p. 60.                                       (1 ) OJ L 56 of 04.04.1964, p. 850.
                                                                          Action brought on 27 March 2003 by Italian Republic
Reference for a preliminary ruling by the Verwaltungsge-                       against Commission of the European Communities
richtshof by order of that Court of 18 March 2003 in the
joint appeals lodged by (1) Georg Dörr and by (2) Ibrahim
                                  Ünal                                                             (Case C-138/03)
                                                                                                   (2003/C 135/19)
                           (Case C-136/03)
                           (2003/C 135/18)
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of Justice of the European
                                                                          Communities on 27 March 2003 by the Italian Republic,
                                                                          represented by Umberto Leanza, acting as Agent, assisted by
Reference has been made to the Court of Justice of the                    Ivo Maria Braguglia and Antonio Cingolo, Avvocati dello
European Communities by order of the Verwaltungsgerichts-                 Stato, with an address for service in Luxembourg.
hof (Higher Administrative Court [Austria]) of 18 March 2003,
received at the Court Registry on 26 March 2003, for a
preliminary ruling in the joint appeals lodged by (1) Georg               The applicant claims that the Court should:
Dörr and by (2) Ibrahim Ünal on the following questions:
                                                                          —     annul the memorandum of 20 January 2003 No 100629
1.    Are Articles 8 and 9 of Council Directive 64/221/EEC of                   (doc. 19), received on 21 January 2003, by which the
      25 February 1964 (1) on the co-ordination of special                      Commission’s Directorate General Regional Policy —
      measures concerning the movement and residence of                         Regional intervention in France, Greece, Italy, communi-
      foreign nationals which are justified on grounds of public                cated its decision to deduct part of the amount requested
      policy, public security or public health (‘the directive’)                by way of assistance in the context of the POP ‘Ricerca,
      to be interpreted as meaning that the administrative                      Sviluppo Tecnologico e Alta Formazione’ (Research,
      authorities may not — notwithstanding the existence of                    Technological development and Higher Education) 2000-
      an internal appeal facility — take a decision ordering                    2006; the memorandum of 3 March 2003 No 102627
      expulsion from the territory without obtaining an opinion                 (doc. 21) quantifying the amount to be deducted; and all
      from a competent authority within the meaning of                          other measures connected therewith and entailed thereby;
 ---pagebreak--- C 135/14               EN                       Official Journal of the European Union                                          7.6.2003
—     order the Commission of the European Communities to                     sale of optician’s goods, the Hellenic Republic is
      pay the costs.                                                          restricting the conditions of establishment of natural
                                                                              persons working as opticians in breach of Article 43 EC.
                                                                        —     Declare that, by enacting and maintaining in force Law
Pleas in law and main arguments                                               No 91/119 and Law No 2646/98 under which the
                                                                              establishment by a legal person of a shop for the sale of
                                                                              optician’s goods is subject to the following conditions:
The applicant claims that the contested memoranda do not
appear to have been issued as a result of one of the procedures
for making decisions exhaustively provided for by the Com-                    —     authorisation of the establishment and operation of
mission’s internal rules, C(2000) 3614 of 29 November 2000,                         the shop for the sale of optician’s goods must
which renders null and void the contested measures, not least                       have been granted to a recognised optician/natural
in view of their content which is of external effect.                               person, the person holding the authorisation to
                                                                                    operate the shop must hold at least 50 % of the
                                                                                    company’s share capital, and must participate at
It further claims that the contested measures were adopted by                       least to that extent in the profits and losses of the
the Commission in manifest breach of Article 32 of Regulation                       company, and the company must be in the form of
EC No 1260/99 (1) and of and of Rule 1.1 and 1.2 in the annex                       a collective or limited partnership,
to Commission Regulation (EC) No 1685/2000 (2).
                                                                              —     the optician in question may participate at most in
Finally, it claims that the decisions adopted by way of the                         one other company owning a shop for the sale of
contested measures are invalid inasmuch as the statement of                         optical articles, subject to the conditions that the
reasons is defective and contradictory and because they                             authorisation for the establishment and operation
infringe the legitimate expectations of the applicant.                              of that shop is in the name of another authorised
                                                                                    optician,
( 1) OJ 1999 L 161, p. 1.
( 2) OJ 2000 L 193, p. 39.                                                    the Hellenic Republic has restricted the conditions of
                                                                              establishment of legal persons operating as opticians in
                                                                              Greece in a manner inconsistent with Article 43 EC and
                                                                              has infringed Article 48 in conjunction with Article 43 EC
                                                                              by imposing on legal persons conditions not applicable to
                                                                              natural persons,
                                                                        —     order the Hellenic Republic to pay the costs.
Action brought on 27 March 2003 by the Commission of
the European Communities against the Hellenic Republic
                          (Case C-140/03)
                                                                        Pleas in Law and Main Arguments
                          (2003/C 135/20)
                                                                        1.    Restrictions on freedom of establishment for natural
                                                                              persons.
An action against the European Communities was brought
before the Court of Justice on 27 March 2003 by the                     2.    Restrictions on freedom of establishment for legal per-
Commission of the European Communities, represented by                        sons.
Maria Patakia, of the legal service.
                                                                        3.    The abovementioned restrictions are not justified by the
The Commission claims that the Court should:                                  grounds put forward.
—     Declare that by enacting and maintaining in force Law
      No 971/79, which does not permit a qualified optician as
      a natural person to operate more than one shop for the