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7.6.

2003 EN Official Journal of the European Union C 135/17

That national of a non-Member State may not be required to The applicant claims that the Court should:
show any independent reason for entering into and residing in
the territory. His right, as a matter of Community law, is 1. Declare that, by including in the invitation to bid in
derived from the right enjoyed by the Community national in various tender procedures organised by the Instituto
such a way that to impose on that person prior formalities Nacional de la Salud para la prestación de servicios de
concerning entry into national territory constitutes not only a terapias respiratorias domiciliarias criteria for admission,
restriction on his (derived) right but also a restriction on the assessment and selection which require bidders to have,
principal right of the Community national. at the time of submitting the bid, certain installations on
Spanish territory, or within a radius of 1 000 kilometres
thereof, and, prior to that, public information offices in
The Commission at the same time emphasises that, in con- specific locations, or that they should at the time be
formity with the general system of the Community rules on providing the same kind of service, the Kingdom of Spain
the issue of residence permits and, with particular regard to has failed to fulfil its obligations under Articles 43 and 49
Article 5 of Directive 64/221, the Member State must adopt EC;
the decision concerning the residence permit as soon as
possible and in any event not later than six months of the date 2. Order the Kingdom of Spain to pay the costs.
of the application, it being understood that this maximum
period of six months is to be taken into account only in
cases where examination of the application is interrupted on
grounds of public policy.
Pleas in law and main arguments

( 1) Directive 68/360 of 15 October 1968 on the abolition of


restrictions on movement and residence within the Community The Commission takes the view that the invitations to bid
for workers of Member State and their families (OJ, English Special relating to the tender procedures which are the subject of these
Edition 1968 (I), p. 485). proceedings are discriminatory inasmuch as they are not
( 2) Directive 73/148/EEC of 21 May 1973 on the abolition of justified by any overriding reason relating to the public interest
restrictions on movement and residence within the Community
for nationals of Member States with regard to establishment and
nor do they observe the principle of proportionality.
the provision of services (OJ 1973 L 172, p. 14).
( 3) Council Directive 90/365 of 28 June 1990 on the right of
residence for employees and self-employed persons who have
ceased their occupational activity (OJ 1990 L 180 p. 28).
( 4) Directive 64/221/EEC of the Council of 25 February 1964 on the
coordination of special measures concerning the movement and
residence of foreign nationals which are justified on grounds of
public policy, public security or public health (OJ English Special
Edition (1963-1964) I, p. 117).
Appeal brought on 7 April 2003 by Jan Pflugradt against
the order of the Court of First Instance of the European
Communities (Fifth Chamber) of 11 February 2003 in
Case T-83/02, Jan Pflugradt v European Central Bank

(Case C-159/03 P)

(2003/C 135/25)
Action brought on 7 April 2003 by the Commission of
the European Communities against the Kingdom of Spain

(Case C-158/03) An appeal against the order of the Court of First Instance of
the European Communities (Fifth Chamber) of 11 February
2003 in Case T-83/02, Jan Pflugradt v European Central Bank,
(2003/C 135/24) was brought before the Court of Justice of the European
Communities on 7 April 2003 by Jan Pflugradt, represented
by Dr Norbert Pflüger, 44 Kaiserstrasse, D-60329 Frankfurt
am Main, with an address for service in Luxembourg.
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 7 April
2003 by the Commission of the European Communities, The appellant claims that the Court, at the same time as it sets
represented by Gregorio Valero Jordana and Klaus Wiedner, of aside the order appealed against, should:
its Legal Service, acting as Agents, with an address for service
in Luxembourg. 1. Declare the action admissible;