Opinion of the Advocate General — ECLI:EU:C:1998:616
Date: 1998-12-17
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Environment;Pollution
Procedure: Action for annulment - successful

Summary of the Judgment
1. Environment — Protection of forests — Regulations imposing measures against atmospheric
pollution and fires — Legal basis — Article 130s of the Treaty — Annulled because based on
Article 43 of the Treaty
(EC Treaty, Arts 43 and 130s and Annex II; Council Regulations Nos 307/97 and 308/97)
2. Actions for annulment — Annulling judgment — Effects — Limitation by the Court — Duty
of the Council to adopt new regulations within a reasonable period
(EC Treaty, Arts 173 and 174, second para.)
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SUMMARY — JOINED CASES C-164/97 AND C-165/97
1. Measures to defend the forest environment
against the risks of destruction and degra­
dation associated with fires and atmo­
spheric pollution inherently form part of
the environmental action for which Com­
munity competence is founded on Article
130s of the Treaty. Although the associ­
ated forest protection measures referred to
in Regulations Nos 3528/86 and 2158/92,
as amended by Regulations Nos 307/97
and 308/97 respectively, may have certain
positive repercussions on the functioning
of agriculture, those indirect consequences
are incidental to the primary aim of the
Community schemes for the protection of
forests, which are intended to ensure that
the natural heritage represented by forest
ecosystems is conserved and turned to
account, and does not merely consider
their utility to agriculture.
Furthermore, Annex II to the Treaty, listing
the products covered by Articles 39 to 46
concerning agriculture, cannot be regarded
as covering in general terms trees and for­
estry products even though some of those
products, taken in isolation, may fall within
the scope of those provisions. It follows
that Regulations Nos 307/97 and 308/97
do not constitute rules on the production
and marketing of agricultural products for
which, to the extent to which those rules
contribute to the attainment or one or
more objectives of the common agricul­
tural policy, Article 43 of the Treaty would
have been the appropriate legal basis.
Accordingly, by basing those regulations
on Article 43 of the Treaty when Article
130s was the appropriate legal basis, the
Council infringed essential procedural
requirements and undermined the Parlia­
ment's prerogatives; the contested regula­
tions must therefore be annulled.
2. The full effect of the annulment of Regu­
lations Nos 307/97 and 308/97 might be
seriously detrimental to the progress of
action undertaken in the Member States,
with the support of the Community, for
protection of the environment. It is there­
fore appropriate for the Court to avail
itself of the power conferred on it by the
second paragraph of Article 174 of the
Treaty to direct that the effects of the
annulled regulations be fully maintained
until the Council adopts, within a reason­
able period, new regulations having the
same subject-matter.
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