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5.9.

98 EN Official Journal of the European Communities C 278/13

Ð the view taken by the Court of First Instance, programmes provided for by Article 6 of Council
according to which the Commission had three months Directive 91/157/EEC (1) of 18 March 1991 on
in which to complete its examination, is consistent batteries and accumulators containing certain
neither with the Aids Code nor with the need, dangerous substances, the Hellenic Republic has failed
recognised by case-law, to complete that examination to fulfil its obligations under the Treaty and that
expeditiously, Directive,

Ð infringement of Article 6(6) of the Steel Aids Code and Ð order the Hellenic Republic to pay the costs.
breach of the general principles of law relating to aid:
in proceeding on the basis of the legally erroneous
premise that the Commission's competence is limited Pleas in law and main arguments adduced in support:
in time, the Court of First Instance disregarded the
case-law of the Court of Justice, according to which a
Under the third paragraph of Article 189 of the EC Treaty,
definitive order for the repayment of aid must
directives are binding, as to the result to be achieved,
invariably be preceded by a conclusive opinion of the
upon each Member State to which they are addressed.
Commission finding the aid substantively illegal. By
Under the first paragraph of Article 5 of the Treaty,
concluding from a failure to comply with a time-limit
Member States are to take all appropriate measures,
Ð which not even the Commission regards as a
whether general or particular, to ensure fulfilment of the
prescriptive deadline, and which it has in numerous
obligations arising out of the Treaty or resulting from
parallel cases treated as a mere administrative deadline
action taken by the institutions of the Community.
for notification purposes Ð that the aid was
substantively illegal, the Court of First Instance
unlawfully confused the formal and the substantive It is not disputed that, up until the time when this
aspects of the aid procedure, application was drafted, the Hellenic Republic still had
not drawn up programmes for the period from 18 March
Ð breach of the prohibition of discrimination: in dealing 1993 to 18 March 1997 as provided for by Article 6 of the
extremely summarily with this head of claim, the Directive, nor had it communicated to the Commission
Court of First Instance failed to comment on the programmes to secure the objectives laid down by that
comparison made by the appellant between its own Article.
situation and the aid case of EKO Stahl,
The Commission is therefore obliged to find that the
Ð breach of the principle of protection of legitimate Hellenic Republic has failed to fulfil its obligations under
expectations, the Treaty and Directive 91/157/EEC.

Ð breach of the obligation to provide a statement of (1) OJ L 78, 26.3.1991, p. 38.
reasons.

(1) OJ C 166, 30.5.1998, p. 14.
(2) Decision No 3855/91/ECSC (OJ L 362, 31.12.1991, p. 57).

Action brought on 16 June 1998 by the Commission of
the European Communities against the French Republic
(Case C-221/98)
Action brought on 10 June 1998 by the Commission of (98/C 278/23)
the European Communities against the Hellenic Republic
(Case C-215/98)
An action against the French Republic was brought before
(98/C 278/22) the Court of Justice of the European Communities on
16 June 1998 by the Commission of the European
Communities, represented by Marie Wolfcarius, of its
An action against the Hellenic Republic was brought Legal Service, acting as Agent, with an address for service
before the Court of Justice of the European Communities in Luxembourg at the office of Carlos Gómez de la Cruz,
on 10 June 1998 by the Commission of the European Wagner Centre, Kirchberg.
Communities, represented by Maria Kondou-Durande,
of its Legal Service, with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, of The Commission of the European Communities claims
its Legal Service, Wagner Centre, Kirchberg. that the Court should:

The Commission claims that the Court should: 1. declare that:

Ð declare that, by failing to adopt or to communicate Ð by not allowing students, who are nationals of
to the Commission within the prescribed period the other Member States and seek to have their right
C 278/14 EN Official Journal of the European Communities 5.9.98

to reside in France recognised, to assure the A fortiori, the fact that the French rules impose yet
authorities that they have sufficient resources further limits on the types of resources which can be
solely by means of the declaration provided for by taken into account when a residence permit is renewed
the Directive, or by such alternative means chosen is also contrary to the Directive. For the same reasons,
by the student as are at least equivalent, the requirement that the student declare that he has at
his disposal at least a certain amount established by
the decree goes beyond what is permitted by the
Ð by limiting the type and characteristics of the Directive, which leaves to the student responsibility for
resources which may be taken into account as assessing the amount he will need to live and study
evidence that the beneficiaries of Directive 90/364/ without becoming a burden on the social assistance
EEC (1) meet the requirement that they have system of the host Member State,
sufficient resources,

Ð Incorrect transposition of Directive 90/364/EEC into
Ð by limiting the types of sickness insurance which
national law
are taken into account as evidence that the
beneficiaries of Directives 90/364/EEC, 90/365/
EEC (2) and 93/96/EEC (3) meet the requirement
Whilst Member States may, under paragraphs 2 and 3
that they are covered by sickness insurance, and
of Article 1 of the Directive, determine the minimum
resources required to enjoy a right of residence, it
Ð by stipulating that the competent authorities must is not permissible for them to determine the
check whether the beneficiaries of Directives 90/ characteristics or nature of those resources. The
364/EEC, 90/365/EEC and 93/96/EEC are still able requirement of regular resources seems to preclude
to provide a certificate of cover under a sickness consideration of factors such as:
insurance scheme, where the first certificate is
valid for a shorter period than the residence Ð occupation of a house as owner or made available
permit, free of charge by the owner,

Ð paid work (in itself too unimportant or minor to
the French Republic has failed to fulfil its obligations
count as employment within the meaning of
under Directive 90/364/EEC, Directive 90/365/EEC
Article 48 of the EC Treaty),
and Directive 93/96/EEC.

Ð access to irregular resources (such as royalties) or
2. order the French Republic to pay the costs. resources provided by a relative, cohabitee or
friend who can act as guarantor,

Pleas in law and main arguments adduced in support: Ð access to a small amount of capital (not producing
income),

Ð Incorrect transposition of Directive 93/96/EEC into
national law Ð absence abroad for part of the year.

The Commission is aware that such situations may
Directive 93/96/EEC prohibits Member States from give rise to difficulties where it is a matter of assessing
requiring other proof or documents relating to the value of various resources to determine whether
resources where a foreign student has chosen to make their total is higher than the minimum level fixed
the declaration provided for in Article 1. That under subparagraphs 2 and 3 of Article 1(1) of
interpretation Ð which simply reflects the actual Directive 90/364/EEC. However, this is a practical
wording of the relevant passage of the provision in difficulty which does not in itself allow certain
question Ð is confirmed by the structure and origin of resources to be disregarded because of their type or
the Directive and by comparison with Directives 90/ characteristics,
364/EEC and 90/365/EEC.

Ð Incorrect transposition of the three Directives into
Although an affidavit' in a form determined by the national law as regards the requirement of sickness
authorities is not in itself contrary to Directive 93/96/ insurance cover against all risks in the host Member
EEC, the requirement that a student declare that he State
has adequate, regular resources, payment of which is
not liable to be interrupted or reduced by a change of
residence', clearly goes beyond what is permissible No doubt the three types of documentary evidence
under the Directive. Moreover, it is a declaration required by the French rules cover the vast majority of
which certain students will not always be able to cases. Moreover, in certain situations, beneficiaries
make, if, for example, they intend to supplement their can obtain cover under French sickness insurance
resources by means of some form of paid employment. schemes. However, the Commission considers that
5.9.98 EN Official Journal of the European Communities C 278/15

these provisions, which list exhaustively the types of of occupational conditions to be undertaken in an
sickness insurance allowed, do not cover all potential equal treatment case should be made by way of an
circumstances and are therefore too restrictive, overall assessment of all the factors en bloc or by way
of a point-for-point comparison as in equal pay cases.
Ð Incorrect transposition of the three directives into
national law as regards verification of continued It can be assumed in answering the question that
sickness insurance cover the transformationsmodel' (reorganisation scheme
for medical specialists' practices, hereinafter the
Whilst, under Article 3 of Directives 90/364/EEC and reorganisation scheme')/agreement assessed en bloc
90/365/EEC and under Article 4 of Directive 93/96/ and as a whole is neutral as regards sex in both its
EEC, a right of residence can be revoked when the effect and purpose.
person concerned no longer meets the conditions laid
down, in particular that regarding sickness insurance
cover, that provision cannot be construed so as It can further be assumed that the reorganisation
to allow active and constant monitoring by the scheme/agreement contains provisions which, viewed
authorities responsible for issuing residence permits in isolation, result in sex bias, inasmuch as it is noted
of the position of the beneficiaries of Directives 90/ that that biased effect, with regard to some provisions,
364/EEC, 90/365/EEC and 93/96/EEC. Any other is predominantly experienced by female medical
approach would be contrary, not only to those specialists and, with regard to other provisions, is
Directives, but, more fundamentally, to the principles predominantly experienced by male medical
embodied in Article 8a of the EC Treaty. specialists.

(1) Council Directive 90/364/EEC on the right of residence (OJ 2. If the answer to question 1 is in the affirmative, a
L 180, 13.7.1990, p. 26). ruling is requested as to how far considerations
(2) Council Directive 90/365/EEC on the right of residence for
relating to budgetary safeguards, savings and planning
employees and self-employed persons who have ceased their
occupational activity (OJ L 180, 13.7.1990, p. 28). as regards medical practices may be treated as
(3) Council Directive 93/96/EEC on the right of residence for objective and valid considerations such as to make it
students (OJ L 317, 18.12.1993, p. 59). acceptable that proportionately more women than
men are affected by the provision in question.

3. In view of the applicant's age (she was born in 1939),
can the consideration for goodwill which the applicant
should obtain when she gives up her practice on
Reference for a preliminary ruling by the éstre Landsret reaching retirement age be likened to an employee's
by a decision of that court of 4 June 1998 in the case of pension savings?
Birgitte Jùrgensen v. Foreningen af Speciallñger and Syge-
sikringens Forhandlingsudvalg
(Case C-226/98) 4. If the Court of Justice replies to question 3 in
the affirmative, clarification is sought as to the
(98/C 278/24) repercussions for the answer to question 1 if one
aspect of the disadvantage to which the provision in
question gives rise is lower consideration for goodwill
Reference has been made to the Court of Justice of the when a practice is relinquished, and thereby worse
European Communities by order of the éstre Landsret pension insurance, if account is taken of the fact that
(Eastern Regional Court) of 4 June 1998, which was in Case C-297/93 Grau-Hupka [1994] ECR 5535,
received at the Court Registry on 24 June 1998, for a paragraph 27, it was held that the Member States are
preliminary ruling in the case of Birgitte Jùrgensen v. Fore- not obliged to grant advantages in respect of old-age
ningen af Speciallñger and Sygesikringens Forhandlings- pension schemes to persons who have brought-up
udvalg on the following questions: children or to provide benefit entitlements where
employment has been interrupted in order to bring up
children.
1. The Court of Justice is asked to clarify how
an assessment as to whether there is indirect
discrimination on grounds of sex should be (1) On the implementation of the principle of equal treatment for
undertaken in a case concerning equal treatment under men and women as regards access to employment, vocational
Council Directive 76/207/EEC (1) of 9 February 1976 training and promotion, and working conditions (OJ L 39,
14.2.1976, p. 40).
and Council Directive 86/613/EEC (2) of 11 December
(2) On the application of the principle of equal treatment between
1986. men and women engaged in an activity, including agriculture,
in a self-employed capacity, and on the protection of self-
employed women during pregnancy and motherhood (OJ
In view of the fact that under the settled case-law of L 359, 19.12.1986, p. 56).
the Court of Justice in equal pay cases a comparison
should be made on a point-for-point-basis,
clarification is requested as to whether the comparison