CELEX: C2003/264/42
Language: en
Date: 2003-11-01 00:00:00
Title: Case C-392/03: Action brought on 16 September 2003 by the Commission of the European Communities against the Italian Republic

C 264/24               EN                         Official Journal of the European Union                                        1.11.2003
Pleas in law and main arguments                                           Communities on 15 September 2003 by the Hellenic Republic,
                                                                          represented by I. Khalkias and E. Svolopoulou, Members of the
                                                                          State Legal Service, with an address for service in Luxembourg
Under Article 18 of Directive 96/67/EC the Member States are              at the Greek Embassy, 27 rue Marie-Adelaïde.
entitled to take measures to protect the rights of workers.
However, such measures must be without prejudice to the
application of that directive, and subject to the other provisions
of Community law. Although Council Directive 2001/23/EC                   The applicant asks the Court to:
of 12 March 2001 on the approximation of the laws of the
Member States relating to the safeguarding of employees’                  —     annul Commission Decision C(2003)2587 excluding
rights in the event of transfers of undertakings, businesses or                 from Community financing certain expenditure incurred
parts of undertakings or businesses (2) does not apply in cases                 by the Member States under the EAGGF — Guarantee
where only a specific share of the market is ‘transferred’ to                   Section, in so far as concerns financial corrections
another undertaking as part of an opening-up of the market,                     chargeable to the Hellenic Republic in the wine, livestock
Paragraph 8(2) of the Verordnung über Bodenabfertigungs-                        premiums and olive oil sectors for the year 1999-2000.
dienste auf Flugplätzen (BADV) authorises the managing body
of an airport to impose a general obligation on new bidders to
take on airport staff, as part of the standard terms for tender
and selection procedures, irrespective of whether there has
been a transfer for the purposes of Directive 2001/23/EC. The             Pleas in law and main arguments
clear effect of Paragraph 8(2) of the BADV is therefore to deter
new undertakings from entering the market and to impede
their competitiveness, thereby reducing the benefits of liberalis-
ation as regards reduction of prices and improvement in the               1.     Infringement of law and of general principles.
quality of services.
                                                                          2. Infringement of the principle of proportionality —
Furthermore, Paragraph 9(3) of the BADV permits the manag-                misuse of discretion.
ing body of an airport to charge higher fees for access to
airport installations in cases where suppliers and selfhandlers
do not take on any staff from the airport operator upon
entering the market. That provision infringes Article 16(3) of            3. Error as to the facts, misassessment of the factual
Directive 96/67/EC which provides that the fee for access to              circumstances, inadequate statement of reasons for the contest-
airport installations is to be determined according to relevant,          ed decision.
objective, transparent and non-discriminatory criteria. The
failure to take on airport staff is not a criterion which meets
any of those requirements. Rather, that provision even enables
                                                                          4. Misinterpretation and misapplication of Article 5(2)(c) of
the airport operator to charge selfhandlers or suppliers of
                                                                          Regulation No 729/70.
services a higher fee for access to airport installations if they
do not take on its staff, and thereby makes it possible for the
airport to discriminate against its direct competitors.
(1) OJ 1996 L 272, p. 36.
(2) OJ 2001 L 82, p. 16.
                                                                          Action brought on 16 September 2003 by the Com-
                                                                          mission of the European Communities against the Italian
                                                                                                     Republic
Action brought on 15 September 2003 by the Hellenic
Republic against the Commission of the European Com-                                              (Case C-392/03)
                             munities
                                                                                                  (2003/C 264/42)
                         (Case C-387/03)
                         (2003/C 264/41)
                                                                          An action against the Italian Republic was brought before the
                                                                          Court of Justice of the European Communities on 16 Septem-
An action against the Commission of the European Communi-                 ber 2003 by the Commission of the European Communities,
ties was brought before the Court of Justice of the European              represented by A. Bordes and L. Visaggio, acting as Agents.
 ---pagebreak--- 1.11.2003              EN                        Official Journal of the European Union                                           C 264/25
The applicant claims that the Court should:                              —     order the Commission to pay the costs.
—     find that, by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with
      Council Directive 1999/74/EC of 19 July 1999 laying                Pleas in law and main arguments
      down minimum standards for the protection of laying
      hens (1) or, in any event, by failing to communicate the
      same to the Commission, the Italian Republic has failed
      to fulfil its obligations under Article 13(1) of that              (Main application)
      directive;
—     order the Italian Republic to pay the costs.                       Infringement of the EC Treaty and/or of Protocol No 9 to the
                                                                         1994 Act of Accession by definitively refusing the request
                                                                         made under the second paragraph of Article 232 EC. The
                                                                         Commission wrongly seeks to deduct from the number of
Pleas in law and main arguments                                          transit journeys declared overall for the year 2002 (1 718 622)
                                                                         journeys declared as transit journeys in respect of which there
                                                                         is no information on departure (69 433), journeys declared as
The time-limit for transposing the directive expired on 1 Janu-
                                                                         transit journeys where both entry and departure were effected
ary 2002.
                                                                         at the same border point (52 642) and journeys involving
                                                                         ‘piggyback transportation’ (7 812).
(1) OJ L 203 of 3.8.1999, p. 53.
                                                                         The ecopoint system under Protocol No 9 to the 1994 Act of
                                                                         Accession is based on the principle of declarations. Accord-
                                                                         ingly, if journeys are clearly declared by a driver as transit
                                                                         journeys, they are included within the ecopoint statistics and
                                                                         are relevant to the question whether the 108 % threshold has
                                                                         been exceeded, whereupon the Commission is bound under
Action brought on 18 September 2003 by the Republic                      Article 11(2)(c) of Protocol No 9, in conjunction with para-
of Austria against the Commission of the European                        graph 3 of Annex 5 thereto, to adopt appropriate measures,
                          Communities                                    namely to reduce the number of ecopoints for the following
                                                                         year in accordance with a calculation method laid down in the
                                                                         Annex to the Protocol. It cannot, in the light of the principle
                         (Case C-393/03)
                                                                         of declarations, be for the Republic of Austria, either legally or
                                                                         factually, to provide evidence in each individual case that,
                         (2003/C 264/43)                                 where a journey is clearly declared to be a transit journey, such
                                                                         a transit journey actually took place. The Republic of Austria
                                                                         merely has to deduct journeys declared to be transit journeys
                                                                         where it is beyond doubt that, despite a clear declaration, there
An action against the Commission of the European Communi-                cannot have been a transit journey. It clearly follows, therefore,
ties was brought before the Court of Justice of the European             that the 108 % threshold was exceeded in 2002. In the light of
Communities on 18 September 2003 (fax: 11.9.03) by the                   its decision of 1 July 2003, the Commission consequently
Republic of Austria, represented by Dr Harald Dossi of the               failed to fulfil its obligations under Protocol 9 to the 1994 Act
Constitutional Service of the Federal Chancellor’s Office of the         of Accession, in particular its obligations under Article 11(2)(c)
Republic of Austria, with an address for service in Luxembourg.          in conjunction with Article 16 and paragraph 3 of Annex 5 to
                                                                         that Protocol, thereby creating grounds for annulment on
                                                                         account of infringement of the EC Treaty and/or of Protocol
The applicant claims that the Court should:                              No 9 to the 1994 Act of Accession pursuant to the second
                                                                         paragraph of Article 230 EC.
—     annul the negative opinion of the Commission of 1 July
      2003 definitively refusing the request for action submit-
      ted to the Commission by the Republic of Austria under
      the second paragraph of Article 232 EC;                            (In the alternative)
—     order the Commission to pay the costs.
                                                                         Infringement of the EC Treaty and/or of Protocol No 9 to the
                                                                         1994 Act of Accession. In relation to the grounds, the
In the alternative, the Republic of Austria claims that the Court        applicant refers to its arguments regarding the first plea in law.
should:
—     annul the Commission’s decision of 1 July 2003 ordering            (1) Protocol No 9 on road, rail and combined transport in Austria.
      the non-application of Article 11(2)(c) of Protocol No 9
      to the 1994 Act of Accession (1) and the full award of
      ecopoints for the year 2003;