Case C-282/01: Action brought on 17 July 2001 by the Commission of the European Communities against the Portuguese Republic
Date: 2001-09-01
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, carriage of passengers, maritime safety, maritime transport

C 245/18

EN

Official Journal of the European Communities

1.9.2001

Under Article 12(4) the Member States are to establish a
system to monitor the incidental capture and killing of the
animal species listed in Annex IV(a). The Swedish legislation
does not cover all the species listed in Annex IV(a).

Under Article 15 Member States are required to prohibit the
use of methods and forms of capture etc listed in Annex VI of
the species listed in Annex Va, and in cases where,
in
accordance with Article 16, derogations are applied, of the
species listed in Annex IVa. The right to derogate from the
prohibition in Article 15 is limited to the situations listed in
Article 16. Under Swedish law, however, the government and
authorities have a right to investigate freely in certain cases
where derogations are to be granted from the rules on
prohibition laid down by Article 15.

The applicant claims that the Court should:

— Declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations and
administrative provisions necessary to comply with
Council Directive 98/18/EC (1) of 17 March 1998 on
safety rules and standards for passenger ships, the Portu-
guese Republic has failed to fulfil its obligations under
the third paragraph of Article 249 of the EC Treaty and
Article 14 of Directive 98/18/EC;

— in the alternative, declare that, by failing to communicate
such measures to the Commission, the Portuguese Repub-
lic failed to fulfil its obligations under the same provisions;
and

— Order the Portuguese Republic to pay the costs.

Article 16(1) lists the situations in which it is possible to
derogate from the rules in Articles 12 to 14 and 15(a) and (b).
A general condition for allowing a derogation is that there is
no satisfactory alternative and that the derogation is not
detrimental to the maintenance of the populations of the
species concerned at a favourable conservation status in their
natural range. In addition, one of the reasons in Article 12(1)(a)
to (e) must obtain. For reasons of legal certainty it is necessary
that the situations and requirements set out in a rule on
derogation such as Article 16 be transposed verbatim into
national rules or that there be a direct reference to the directive.
Under the Swedish legislation the government can allow
derogations on the basis of various considerations. The
Swedish rules on derogation therefore do not conform to
Article 16 and nor do they refer to those provisions in the
directive.

Pleas in law and main arguments

The mandatory nature of the provisions of the third paragraph
of Article 249 requires Member States to adopt the measures
necessary to transpose directives addressed to them into their
domestic law. Despite the expiry of that period, which is laid
down in Article 14(1) of Directive 98/18/EC, and despite the
specific notification requirement provided for in Article 4(2)
of the directive, the Portuguese Republic has not brought into
in any event, has not
force the necessary provisions and,
communicated them to the Commission.

(1) OJ 1998 L 144, p. 1.

(1) OJ L 206, 22.7.1992, p. 7.
(2) OJ L 305, 8.11.1997, p. 42.

Action brought on 17 July 2001 by the Commission
of the European Communities against the Portuguese
Republic

(Case C-282/01)

(2001/C 245/31)

An action against the Portuguese Republic was brought before
the Court of Justice of the European Communities on 17 July
2001 by the Commission of the European Communities,
represented by Bernard Mongin and Francisco de Sousa Fialho,
acting as Agents.

Action brought on 19 July 2001 by the Commission of
the European Communities against the French Republic

(Case C-286/01)

(2001/C 245/32)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 19 July
2001 by the Commission of the European Communities,
represented by P. Nemitz and B. Mongin, acting as Agents.

The applicant claims that the Court should:

— Declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations and
administrative provisions necessary to comply with
Directive 98/10/EC (1), and in particular Article 6(3) and
(4) and Articles 10, 21 and 26, the French Republic has
failed to fulfil its obligations under Article 32 of that
directive and Article 249 of the EC Treaty; and