8.3.2008   

EN

Official Journal of the European Union

C 64/25

Action brought on 21 December 2007 — Commission of the European Communities v Hellenic Republic

(Case C-568/07)

(2008/C 64/37)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: G. Zavvos and E. Traversa)

Defendant: Hellenic Republic

Form of order sought

—

declare that, by failing to take the necessary measures to comply with the judgment delivered by the Court of Justice on 21 April 2005 in Case C-140/03, the Hellenic Republic has failed to fulfil its obligations under Articles 43 EC and 48 EC;

—

order the Hellenic Republic to pay to the Commission a proposed penalty payment of EUR 70 956 for each day of delay in complying with the judgment which was delivered in Case C-140/03, from the day when judgment is delivered in the present case until the day when the judgment delivered in Case C-140/03 has been complied with;

—

order the Hellenic Republic to pay to the Commission a lump sum, the amount of which is a daily sum multiplied by the number of the days that the failure to fulfil obligations continues from the day when judgment was delivered in Case C-140/03 until the date on which judgment is delivered in the present case;

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

1.

In the judgment delivered by it on 21 April 2005 in Case C-140/03 Commission v Greece relating to restrictions concerning the opening and operation of opticians' shops in breach of Articles 43 EC and 48 EC, the Court of Justice of the European Communities:

‘1.

[declared] that by enacting and maintaining in force Law No 971/79 on the exercise of the profession of optician and on shops for the sale of optical articles, which does not permit a qualified optician as a natural person to operate more than one optician's shop, the Hellenic Republic [had] failed to fulfil its obligations under Article 43 EC;

2.

[declared] that by enacting and maintaining in force Law No 971/79 and Law No 2646/98 on the development of a national social security system and other provisions, under which the establishment by a legal person of an optician's shop in Greece is subject to the following conditions:

—

authorisation for the establishment and operation of the optician's shop must have been granted to a recognised optician who is a natural 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 least to that extent in the profits and losses of the company, and the company must be in the form of a collective or limited partnership, and

—

the optician in question may participate at most in one other company owning an optician's shop, subject to the condition that the authorisation for the establishment and operation of that shop is in the name of another authorised optician,

the Hellenic Republic [had] failed to fulfil its obligations under Articles 43 EC and 48 EC;

3.

[ordered] the Hellenic Republic to pay the costs’.

2.

Article 228 EC provides that if the Court of Justice finds that a Member State has failed to fulfil an obligation under the Treaty, the State is to be required to take the necessary measures to comply with the judgment of the Court of Justice.

3.

By letter of 9 June 2005, the Commission of the European Communities requested the Greek Government to take measures to comply with the abovementioned judgment of the Court. In its letter, it also stated that Law No 3204/2003 could not constitute an adequate response to the Court's judgment, at least as regards the second claim, since under that Law the right to establish and operate an optician's shop continues to fall to a large degree to opticians.

4.

The Greek Government replied by letter of 11 August 2005. It stated that many provisions of Law No 971/79 had been amended and Article 27(4) of Law No 2646/98 had been repealed. More specifically, the new Article 6(6) of Law No 971/79 allowed natural persons holding a professional authorisation and companies and firms to operate more than one shop provided that management of the shop was entrusted to an optician possessing the relevant professional authorisation.

5.

The new Article 7(1) of Law No 971/79 allows companies and firms, whatever their legal form, to establish opticians' shops provided that: (i) as regards partnerships, the majority of partners and the manager, or the majority of managers, will be opticians possessing authorisation to pursue that profession; (ii) as regards private limited companies, more than half of the shareholders representing more than half of the share capital will be opticians possessing a professional authorisation; and (iii) as regards public limited companies, at least 51 % of the share capital will be owned by opticians who are citizens of countries of the European Union and possess the qualifications laid down by Law No 971/79 and by Presidential Decrees Nos 231/98 and 165/2000 as amended by Presidential Decree No 373/2001.

6.

The applicant submits that the new Article 7(1) of Law No 971/79 does not constitute an adequate response to the second claim. That article retains the requirement for opticians' shops to be owned by authorised opticians, inasmuch as they must either constitute the majority of the partners or hold the majority of the share capital.

7.

Consequently, there is always a restriction on the freedom of establishment in Greece of companies and firms of other Member States, in so far as they cannot in any event be the sole owners of an optician's shop. That restriction is not justified by the need to ensure a high level of public-health protection. As the Court states in Case C-140/03, this objective ‘may be achieved by measures which are less restrictive of the freedom of establishment both for natural and legal persons, for example by requiring the presence of qualified, salaried opticians or associates in each optician's shop, rules concerning civil liability for the actions of others, and rules requiring professional indemnity insurance’ (paragraph 35).

8.

Consequently, the Commission considers that, with the new Article 7(1) of Law No 971/79, the Hellenic Republic continues to breach its obligations under Articles 43 EC and 48 EC. The provisions enacted by the Hellenic Republic therefore amount to only partial compliance with the Court's judgment referred to in paragraph 1.

9.

On the basis of the foregoing, the Commission finds that the Hellenic Republic has not yet taken all the measures that are required for compliance with the Court's judgment in Case C-140/03 Commission v Greece, which concerns restrictions relating to the establishment and operation of opticians' shops, in breach of Articles 43 EC and 48 EC.