Case C-205/01: Action brought on 18 May 2001 by Commission of the European Communities against Kingdom of the Netherlands
Date: 2001-07-28
Institutions: Court of Justice
Subjects: European Commission, Netherlands, action for failure to fulfil an obligation, animal experimentation, animal welfare, protection of animals

28.7.2001

EN

Official Journal of the European Communities

C 212/13

Action brought on 16 May 2001 by the Commission of
the European Communities against the French Republic

(Case C-202/01)

(2001/C 212/21)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 16 May
2001 by the Commission of the European Communities,
represented by G. Valero Jordana and J. Adda, acting as Agents,
with an address for service in Luxembourg.

The applicant claims that the Court should:

— Declare that the French Republic has failed to fulfil its
obligations under Council Directive 79/409/EEC of
2 April 1979 on the conservation of wild birds (1) and
under the Treaty establishing the European Community,
in that it has not, in satisfactory measure, classified as
special protection areas the territories most suitable for
the conservation of the species of wild bird listed in
Annex I to that Directive or of migratory species of bird,
and, in particular, in that it has not classified as a special
protection area a sufficiently large area of land on the
Plaine des Maures;

— Order the French Republic to pay the costs.

Pleas in law and main arguments

(Infringement procedure 97/2004 concerning the application
of the Directive in general)

— When the deadline provided for in Article 18 of Directive
79/409/EEC expired on 16 April 1989,
the French
Republic had not yet adopted the measures necessary to
comply with its obligations under Article 4 thereof. The
special protection areas designated so far are insufficient
in terms of number, size and quality to meet
the
protection needs of the species of bird concerned. Only
40,7 % of the 285 sites named in the official list of
‘Important areas for the conservation of birds’ (the IACB)
— published in 1994 by the French Ministry of the
Environment and the League for the Protection of Birds
and based on the most reliable scientific data then
available — and only 18,2 % of the land covered by those
sites has been classed, in whole or in part, as special
protection areas. The Court of Justice has recognised that
those lists are relevant and may be relied upon in actions
against Member States for failure to fulfil obligations (2).
According to the Commission, the French Government
has not yet drawn up a list showing that the findings of
the IACB are unsound and the latter remains the best
scientific evidence available on the basis of which to
make an overall assessment of the classifications effected
by France in respect of its territory.

— By April 2000, 41 of the 96 sites listed in the IACB as
wetlands of international importance had not yet been
classified by France as special protection areas and in the
case of at least 4 of the 45 sites which had been so
classified, the classification applied only to the minimum
surface area possible — notwithstanding the fact that
Article 4(2) of Directive 79/409/EEC requires that such
sites be classified as special protection areas in order to
protect wetlands and the species of bird which live there,
particularly migratory species. There has not yet been any
significant improvement in this situation.

(Infringement procedure 97/4527 concerning the application
of the Directive to the Plaine des Maures)

— In classifying as special protection areas no more than
879 hectares out of the 7 500 hectares covered by the
IACB (that is to say, 11.72 %), France has also failed to
fulfil its obligation under Article 4(1) and (2) of Directive
79/409/EEC to classify as special protection areas the
most suitable territories in number and size.

(1) OJ L 103 of 25.4.1979, p. 1.
(2) Case C-3/96 Commission v Netherlands [1998] ECR I-3031.

Action brought on 18 May 2001 by Commission of the
European Communities against Kingdom of the Nether-
lands

(Case C-205/01)

(2001/C 212/22)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
18 May 2001 by Commission of the European Communities,
represented by R. Wainright and J. Stuyck, acting as Agents.

The applicant claims that the Court should:

— Declare that by failing to adopt all the laws, regulations
and administrative provisions necessary in order to
implement in national law Articles 8(2), 11, 18(1) and
22(1) of Council Directive 86/609/EEC(1) of 24 Novem-
ber 1986 on the approximation of laws, regulations and
administrative provisions of the Member States regarding
the protection of animals used for experimental and other
scientific purposes, or in any case by failing to inform the
Commission of those provisions, the Kingdom of the
Netherlands has failed to take the measures necessary to
comply with Article 25 of Directive 86/609/EEC that are
necessary to comply with the directive by 24 November
1989 at the latest;

C 212/14

EN

Official Journal of the European Communities

28.7.2001

— Order the Kingdom of the Netherlands to pay the costs.

(b)

Pleas in law and main arguments

The Commission submits that Netherlands has not correctly
implemented the following provisions of the directive into
Netherlands law:

— Article 8(2) (use of anaesthesia in the case of serious
injury which may cause severe pain): A draft amendment
to the ‘Dierproevenbesluit’ (animal experiments order) for
last sentence,
the implementation of Article 8(2)(b),
of
the directive, was, according to the Netherlands
Government, recently sent for the opinion of the Raad
van State.

— Article 11 (release of animals): The Commission submits
that Article 10(a), second paragraph of the Wet op de
Dierproeven (law on animal experiments) has a general
scope and does not concern specifically the release of
animals.

— Article 18(1) (identification marking of dogs, cats and
primates): There is no provision in Netherlands law to
the effect that before they are weaned they must be provided
with an individual identification mark in the least painful
manner possible.

— Article 22(1) (mutual recognition of results of animal
experiments): The Commission submits that this pro-
vision must be implemented in national law by means of
a statutory provision with binding force.

(1) OJ 1987, L 117, p. 31.

Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Chancery Division, by order
of that court of 4 May 2001, in the case of Arsenal
Football Club plc against Matthew Reed

(Case C-206/01)

(2001/C 212/23)

Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice (England & Wales), Chancery Division, of 4 May 2001,
which was received at the Court Registry on 18 May 2001, for
a preliminary ruling in the case of Arsenal Football Club plc
against Matthew Reed, on the following questions:

1. Where a trade mark is validly registered and

(a)

a third party uses in the course of trade a sign
identical with that trade mark in relation to goods
which are identical with those for whom the trade-
mark is registered; and

the third party has no defence to infringement by
virtue of Article 6(1) of the Council Directive of the
21st December 1988 to approximate the laws of
the Member States
relating to trade marks
(89/104/EEC) (1);

does the third party have a defence to infringement on
the ground that the use complained of does not indicate
trade origin (i.e. a connection in the course of trade
between the goods and the trade mark proprietor)?

2.

is the fact that the use in question would be
If so,
perceived as a badge of support, loyalty or affiliation to
the trade mark proprietor a sufficient connection?

(1) OJ L 40, 11.2.1989, p. 1.

Reference for a preliminary ruling from the Bundesfin-
anzhof by order of that court of 21 February 2001 in the
case of Theodor Schilling and Angelika Fleck-Schilling v
Finanzamt Nürnberg-Süd

(Case C-209/01)

(2001/C 212/24)

Reference has been made to the Court of Justice of the
European Communities by an order of the Bundesfinanzhof
(Federal Finance Court) of 21 February 2001, which was
for a
received at
preliminary ruling in the case of Theodor Schilling and
Angelika Fleck-Schilling v Finanzamt Nürnberg-Süd on the
following questions:

the Court Registry on 21 May 2001,

1.

Is it contrary to the first paragraph of Article 14 of the
Protocol on the privileges and immunities of the Euro-
pean Communities of 8 April 1965 (BGBl II 1965, 1482,
1488) if German nationals who work in Luxembourg as
officials of the European Community and live there may
not, in the context of assessment to German income tax,
deduct expenditure in respect of a household help
employed in Luxembourg under Paragraph 10(1)(8) of
the Einkommensteuergesetz (Law on income tax) because
the contributions to the statutory pension insurance
scheme for the household help were not paid to the
German pension insurance scheme?

2.

If Question 1 is answered in the negative: Is Article 48(4)
of the EC Treaty to be interpreted as meaning that an EC
official may not rely on Article 48 of the EC Treaty?