CELEX: C2003/083/21
Language: en
Date: 2003-04-05 00:00:00
Title: Case C-59/03: Reference for a preliminary ruling by the Tribunale di 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

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:
 ---pagebreak--- 5.4.2003                EN                         Official Journal of the European Union                                          C 83/13
Does national legislation (Decree-Law No 324 of 10 September               Action brought on 14 February 2003 by the Commission
1998, unconverted, and Article 43(7) of Law No 448 of                      of the European Communities against the Kingdom of
23 December 1998) which, by setting aside the ordinary law                                              Belgium
that permits continuation of the employment relationship,
allows an undertaking (Ferrovie dello Stato SpA) to dismiss its
older employees — thereby creating a situation in which the
undertaking can save on labour costs (salaries and insurance                                        (Case C-65/03)
obligations), with an immediate resulting burden to the State
in the form of reduced contribution revenue and the payment
of pensions to dismissed workers — fall within the concept of
                                                                                                    (2003/C 83/23)
aid that is incompatible with the common market within the
meaning of Article 87 of the Treaty?
                                                                           An action against the Kingdom of Belgium was brought
                                                                           before the Court of Justice of the European Communities on
                                                                           14 February 2003 by the Commission of the European
Action brought on 14 February 2003 by the Commission                       Communities, represented by D. Martin, acting as Agent, with
of the European Communities against the Kingdom of the                     an address for service in Luxembourg.
                             Netherlands
                           (Case C-63/03)
                                                                           The applicant claims that the Court should:
                           (2003/C 83/22)
                                                                           —     declare that, by not adopting the measures necessary to
                                                                                 ensure that holders of secondary education qualifications
                                                                                 obtained in the other Member States may be admitted
An action against the Kingdom of the Netherlands was brought                     to higher education organised by the Belgian French-
before the Court of Justice of the European Communities on                       speaking Community on the same terms as holders of
14 February 2003 by the Commission of the European                               the CESS (certificat d’enseignement secondaire supérieur),
Communities, represented by W. Wils, acting as Agent.                            the Kingdom of Belgium has failed to fulfil its obligations
                                                                                 under Articles 12, 149 and 150 EC.
The applicant claims that the Court should:
                                                                           —     order the Kingdom of Belgium to pay the costs.
1.     Declare that, by failing to bring into force the laws,
       regulations and administrative provisions necessary to
       comply with Directive 98/71/EC ( 1) of the European
       Parliament and of the Council of 13 October 1998 on
       the legal protection of designs, or in any event by failing
       to forward those provisions to the Commission, the                  Pleas in law and main arguments
       Kingdom of the Netherlands has failed to fulfil its
       obligations under that directive;
2.     Order the Kingdom of the Netherlands to pay the costs.              The Belgian authorities in question require holders of diplomas
                                                                           and qualifications attesting to the completion of secondary
                                                                           studies in other Member States (with the exception of the
                                                                           Grand-Duchy of Luxembourg), who are nationals of other
Pleas in law and main arguments                                            Member States and who wish to be admitted to higher
                                                                           education in Belgium, to sit and pass an aptitude test unless,
                                                                           by way of an additional requirement, they are able to
The period within which the directive had to be transposed                 demonstrate that they have been granted admission in their
expired on 28 October 2001.                                                country of origin to the desired university faculty without an
                                                                           entrance examination or other form of restriction of admission.
                                                                           The Commission considers that this practice is discriminatory
( 1) Directive 98/71/EC of the European Parliament and of the Council      and contrary to the articles cited in the above claims.
     of 13 October 1998 on the legal protection of designs (OJ 1998
     L 289, p. 28).