Case C-226/01: Action brought on 6 June 2001 by the Commission of the European Communities against the Kingdom of Denmark
Date: 2001-07-28
Institutions: Court of Justice
Subjects: Denmark, European Commission, action for failure to fulfil an obligation, bathing water, quality of the environment, water analysis

C 212/18

EN

Official Journal of the European Communities

28.7.2001

Appeal brought on 28 May 2001 against the decision
handed down on 28 March 2001 by the Court of First
Instance of the European Communities (First Chamber)
in Case T-130/00 between Javier Reyna Gonza´lez del
Valle and the Commission of the European Communities

to Community law is a decision of a supreme court of a
Member State, such as, as in this case, the Verwaltungsger-
ichtshof?

2.

If the answer to Question 1 is yes:

(Case C-219/01 P)

(2001/C 212/31)

An appeal against the decision handed down on 28 March
2001 by the Court of First Instance of the European Communi-
ties (First Chamber) in Case T-130/00 between Javier Reyna
Gonza´lez del Valle and the Commission of the European
Communities was brought before the Court of Justice of the
European Communities on 28 May 2001 by Javier Reyna
Gonza´lez del Valle, represented by J.M. Valoria de Arana,
abogado.

The appellant claims that the Court of Justice should:

— set aside the contested order in its entirety and

— uphold all the claims which he brought before the Court

of First Instance.

Is the case-law of the Court of Justice according to which
it is for the legal system of each Member State to
determine which court or tribunal has jurisdiction to
hear disputes involving individual rights derived from
Community law (see inter alia Case C-54/96 Dorsch
[1997] ECR I-4961) also applicable when the conduct of
an institution purportedly contrary to Community law is
a judgment of a supreme court of a Member State, such
as, as in this case, the Verwaltungsgerichtshof?

3.

If the answer to Question 2 is yes:

Does the legal interpretation given in the above-men-
tioned judgment of the Verwaltungsgerichtshof, accord-
ing to which the special length of service increment is a
form of loyalty bonus, breach a rule of directly applicable
Community law, in particular the prohibition on indirect
discrimination in Article 48 of the EC Treaty (now
Article 39 EC) and the relevant settled case-law of the
Court of Justice?

Pleas in law and main arguments

4.

If the answer to Question 3 is yes:

Although Articles 90 and 91 of the Staff Regulations of
Officials of the European Communities do not make any
distinction between irregularities which render a measure void
and those which render it merely voidable, that does not mean
that an administrative measure which is void is always subject
to the time-limits for bringing proceedings prescribed by those
articles.

Reference for a preliminary ruling from the Landesgericht
für Zivilrechtsachen (Regional Civil Court) — by order of
that court of 7 May 2001 in the case of Dr. Gerhard
Köbler v Republic of Austria

(Case C-224/01)

(2001/C 212/32)

Reference has been made to the Court of Justice of the
European Communities by an order of the Landesgericht für
Zivilrechtsachen of 7 May 2001, which was received at the
Court Registry on 6 June 2001, for a preliminary ruling in the
case of Dr. Gerhard Köbler v Republic of Austria on the
following questions:

1.

Is the case-law of the Court of Justice to the effect that it
is immaterial as regards State liability for a breach of
Community law which institution of a Member State is
responsible for that breach (see Joined Cases C-46/93 and
C-48/93 Factortame [1996 ECR I-1029) also applicable
when the conduct of an institution purportedly contrary

Is this rule of directly applicable Community law such as
to create a subjective right for the plaintiff in the main
proceedings?

5.

If the answer to Question 4 is yes?:

Does the Court of Justice of the European Community
have sufficient information in the content of the order
for reference to enable it to rule itself as to whether the
Verwaltungsgerichtshof in the circumstances of the main
proceedings described has clearly and significantly
exceeded the discretion available to it, or is it for the
referring Austrian court to answer that question.

Action brought on 6 June 2001 by the Commission of the
European Communities against the Kingdom of Denmark

(Case C-226/01)

(2001/C 212/33)

An action against the Kingdom of Denmark was brought
before the Court of Justice of the European Communities on
6 June 2001 by the Commission of the European Communi-
ties, represented by Hans Støvlbæk, acting as Agent, with an
address for service in Luxembourg.

28.7.2001

EN

Official Journal of the European Communities

C 212/19

The applicant claims that the Court should:

Action brought on 7 June 2001 by the Commission of the
European Communities against the Kingdom of Spain

— Declare that, by failing to adopt the measures necessary
to guarantee the quality of bathing water in accordance
with the limit values in Directive 76/160/EEC (1) and by
failing to comply with the minimum frequency of
sampling operations, as required under that directive, the
Kingdom of Denmark has failed, within the terms of
Article 226 EC, to fulfil its obligations under Articles 4(1)
and 6(1) of Directive 76/160/EEC concerning the quality
of bathing water;

— order the Kingdom of Denmark to pay the costs of the

present proceedings.

Pleas in law and main arguments

— Article 4(1) of the directive, in conjunction with Articles 3
and 5(1) thereof, requires Member States to take measures
to ensure that a specific result is achieved before the
expiry of a set period (10 December 1985), and, apart
from the exceptions laid down in the directive, a Member
State cannot plead special circumstances as a ground for
failure to comply with that obligation. It follows that
Denmark cannot successfully argue that compliance with
the directive is satisfied if it simply adopts measures with
a view to complying therewith. Denmark cannot invoke
Article 5(2) as a ground for adjusting compliance percent-
ages in respect of ’fortuitous excesses’ deemed to result
from pollution by animals or heavy rain, inasmuch as
those conditions, which are in no wise documented,
cannot be regarded as constituting abnormal weather
conditions.

— Obligation under Article 6(1): the Commission can accept
that the directive provides the possibility of reducing the
number of sampling operations. However, with regard to
the 11 specific bathing areas in respect of which the
Commission requested more detailed information, Den-
mark has merely provided documentation stating that
the Danish rules, under which the number of sampling
operations may be reduced by a factor of 2, that is to say,
from 10 to 5, if the quality of the bathing water has, over
the course of two successive bathing seasons, been of
better quality than that prescribed in the directive, had
been complied with in three cases.

(1) Council Directive of 8 December 1975 concerning the quality of

bathing water, OJ 1975 L 31, p. 1.

(Case C-227/01)

(2001/C 212/34)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 7 June
2001 by the Commission of the European Communities,
represented by Gregorio Valero Jordana, with an address for
service in Luxembourg at the office of Gérard Berscheid,
Wagner Centre C 254.

The applicant claims that the Court of Justice should:

— declare that by not carrying out an environmental impact
assessment in connection with the ‘Valencia Tarragona
railway project, Las Palmas-Oropesa section. Platform’, a
project forming part of that known as the ‘Mediterranean
Corridor’, the Kingdom of Spain has failed to fulfil its
obligations under Articles 2, 3, 5(2) and 6(2) of Council
Directive 85/337/EEC (1) of 27 June 1985 on the assess-
ment of the effects of certain public and private projects
on the environment;

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Failure to comply with Directive 85/337/EEC in preparing
the railway project: The project was not subjected to the
environmental impact assessment provided for in the directive,
which was compulsory in this instance as the project was one
of those referred to in Point 7 of Annex I to the directive. The
section of railway to which the present action relates involves
the construction of a line for long-distance railway traffic in at
least two senses: duplication of the existing line and construc-
tion of a new line in the municipal terminal of Benicassim.
The Commission considers that the fact that the General
Development Plan for Benicassim was the subject of an impact
assessment does not excuse the Spanish Government from
subjecting the railway project to which the present action
relates to the impact assessment procedure. Having regard to
the lack of detail in which that Plan refers to the route of the
Las Palmas-Oropesa railway section and the non-existence of
studies into the effects of the project on the environment, a
specific environmental
impact procedure was necessary in
order to comply with the obligations arising under Directive
85/337/EEC.

Last, the Commission considers that the Environmental Impact
Study drawn up in connection with the drafting of Amendment
No 3 to the Construction Project not only covered only part