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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;
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