C-328/90
ECLI:EU:C:1991:439
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OPINION OF MR JACOBS —CASE C-328/90
OPINION OF MR ADVOCATE GENERAL JACOBS delivered on 21 November 1991 *
My Lords, (2) by prohibiting or by restricting access for nationals of other Member States already employed in Greece and of members of their families to the posts of director or teacher in "frontistiria" and 1. In these proceedings the Commission in private music and dancing schools, seeks a declaration that the Hellenic the Hellenic Republic has failed to fulfil its obligations under Article 48 of the Republic is in breach of its obligations EEC Treaty.' under Article 171 of the EEC Treaty as a result of its failure to take the measures necessary to comply with:
(a) the judgment of the Court of 15 March 3. In Case 38/87 the Court declared that: 1988 in Case 147/86 Commission v Greece [1988] ECR 1637;
(b) the judgment of the Court of 14 July '(1) by maintaining in force provisions 1988 in Case 38/87 Commission v which do not expressly uphold the right Greece [1988] ECR 4415. of nationals of the other Member States to register as ordinary members of the Technical Chamber of Greece, where such registration is a precondition for and facilitates access to the professions 2. In Case 147/86 the Court declared that: of architect, civil engineer and surveyor and the exercise thereof in the Hellenic Republic, the Hellenic Republic has failed to fulfil its obligations under Articles 52 and 59 of the EEC Treaty; '(1) by prohibiting nationals of other Member States from setting up "fron- tistiria" (coaching establishments) and private music and dancing schools, and from giving private lessons at home, the Hellenic Republic has failed to fulfil its obligations under Articles 52 and 59 of (2) by maintaining in force provisions the EEC Treaty; which make access to the profession of
* Original language: English.
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lawyer and the exercise thereof condi- 7. By letter of 30 March 1990 Greece asked tional upon the possession of Greek the Commission to grant it a further period nationality, the Hellenic Republic has of two months to comply with the judgment failed to fulfil its obligations under in Case 147/86 and a reasonable period to Articles 52 and 59 of die EEC Treaty.' comply with the judgment in Case 38/87 as regards access to the professions of architect, civil engineer and surveyor. It stated further that it had informed the Commission in April 1989 that, as regards access to the legal profession, it had complied with the Court's judgment in Case 4. Having received no information from the 38/87 by adopting Presidential Decree Greek authorities about the implementation No 172 of 2 March 1989. of those judgments, the Commission invited Greece, by letter of 26 May 1989, to submit its observations.
5. By letter of 4 August 1989 Greece informed the Commission that compliance 8. In a further letter dated 12 June 1990 with the judgment in Case 147/86 would Greece informed the Commission that the require the amendment of legislation that competent authorities had now initiated had been in force for several decades. The procedures that would ensure the full author of the letter also observed that application of the judgment in Case 147/86. third-party proceedings were pending against the aforesaid judgment. He stated, furthermore, that since the Greek Government had been formed for a shon period and for the performance of specific tasks, it would not be possible to introduce legislation for matters so particular. No mention was made in that letter of any steps that might be taken to comply with the judgment in Case 38/87. 9. The Commission lodged an application with the Court on 23 October 1990. It asks the Court to declare that Greece is in breach of its obligations under Article 171 of the Treaty as a result of its failure to take the measures necessary to comply with the 6. On 22 January 1990 the Commission judgment in Case 147/86 and the measures issued a reasoned opinion stating that, by necessary to comply with the judgment in failing to take the necessary steps to comply Case 38/87 as regards access to the with the aforesaid judgments, Greece was in professions of architect, civil engineer and breach of its obligations under Article 171 surveyor. The Commission accepts implicitly of the Treaty. The Commission invited that by adopting Presidential Decree Greece to take the necessary steps within No 172 Greece has complied with the two months. judgment in Case 38/87 as regards access to
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OPINION OF MR JACOBS —CASE C-32Í/90
the legal profession. The Commission also 13. Secondly, the fact that the legislation asks that Greece should be ordered to pay found to be contrary to Community law has the costs. been in force for several decades is irrelevant, as is the fact that the government has been formed for a short period and for the performance of specific tasks. A Member Sute may not plead provisions, practices or circumstances in its internal legal system in order to justify a failure to comply with its obligations under 10. In its defence Greece sutes that the Community law. competent ministries are in the process of drafting legislation to amend Greek law in accordance with the judgments of the Court. It sutes further that, since it had already informed the Commission that it was in the process of amending the relevant legislation, it only remains to bring the legislatíve process to completion. It therefore invites the Court to dismiss the 14. Thirdly, the commencement of application and order the Commission to third-party proceedings against a judgment, pay the costs. pursuant to Article 39 of the Protocol on the Sutute of the Court of Justice of the EEC, does not have automatic suspensory effect. It is true that the Court may, under Article 97(2) of the Rules of Procedure, order a stay of execution of the judgment on application by the third party. However, no such order was made, or requested, in 11. At today's hearing the agent of the relation to the judgment in Case 147/86. Greek Government has confirmed that the The applications originating third-party necessary legislation has still not been proceedings were in any event dismissed on adopted. There cannot be any doubt that 6 December 1989 [(1989] ECR 4103, 4111 the Commission is entitled to succeed in its and 4119). application. The following observations may be made.
15. Fourthly, although Article 171 does not 12. First, in order to comply with a prescribe any particular period for the judgment of the Court esublishing that adoption of the necessary measures to national law is at variance with Community comply with a judgment of the Court, such law, it is not sufficient to sute an intention measures 'must be initiated immediately and to amend the legislation in question. The mun be completed as soon as possible': see, amending legislation must actually be for example, Case 160/85 Commission v enacted and brought into force. Italy [1986] ECR 3245.
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16. I am accordingly of the opinion that the Court should:
(1) declare that, by failing to take the necessary measures to comply with the judgment of the Court in Case 147/86, the Hellenic Republic is in breach of its obligations under Article 171 of the Treaty;
(2) declare that, by failing to comply with the judgment of the Court in Case 38/87, as regards access to the professions of architect, civil engineer and surveyor, the Hellenic Republic is in breach of its obligations under Article 171 of the Treaty;
(3) order the Hellenic Republic to pay the costs.
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