Case C-296/01: Action brought on 25 July 2001 by the Commission of the European Communities against the French Republic
Date: 2001-09-15
Institutions: Court of Justice
Subjects: European Commission, France, action for failure to fulfil an obligation, environmental protection, genetically modified organism, public health

15.9.2001

EN

Official Journal of the European Communities

C 259/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

Reference for a preliminary ruling by the Tribunale
Amministrativo Regionale, Lazio, by order of 18 April
2001 in the case of Monsanto Agricoltura Italia SpA,
Monsanto Europe S.A., Novartis Seeds SpA, Novartis
Seeds AG, Pioneer Hi Bred Italia SpA, Pioneer Overseas
Corporation, Assobiotec — Associazione Nazionale per
lo Svilupo delle Biotecnologie against Office of the
President of the Council of Ministers, Ministry of Health,
Council of Ministers, President of the Council of Minis-
ters, Ministry for Community Policies, Istituto Superiore
di Sanità, Consiglio Superiore di Sanità

of such values, as demonstrated by the ordinary procedure
governed by Article 6 et seq. of the same regulation [and] that
the said simplified procedure is capable of being applied,
merely because of the need to expedite and simplify adminis-
trative action, for the placing on the market of foods and food
ingredients in respect of which, since their composition
includes transgenic proteins,
information is not available
covering all the implications for the health of consumers, they
not having hitherto been used for human consumption to a
significant degree, and regarding interaction with the environ-
ment, as may be inferred in general from the … Recommen-
dation of [21 July] 1997?

(Case C-236/01)

(2001/C 259/01)

(1) OJ L 43 of 14.2.1997, p. 1.

Reference has been made to the Court of Justice of the
European Communities by order of 18 April 2001 by
the Tribunale Amministrativo Regionale del Lazio (Regional
Administrative Court), Lazio, which was received at the Court
Registry on 19 June 2001, for a preliminary ruling in the case
of Monsanto Agricoltura Italia SpA, Monsanto Europe S.A.,
Novartis Seeds SpA, Novartis Seeds AG, Pioneer Hi Bred
Italia SpA, Pioneer Overseas Corporation, Assobiotec —
Associazione Nazionale per lo Svilupo delle Biotecnologie
against Office of the President of the Council of Ministers,
Ministry of Health, Council of Ministers, President of the
Council of Ministers, Ministry for Community Policies, Istituto
Superiore di Sanità, Consiglio Superiore di Sanità, on the
following questions:

Is Article 5 of Regulation [No 258/97/EC (1) valid in relation
to] Articles [153 and 174 EC] and the principles of pro-
portionality and reasonableness [despite the fact that] it does
not provide for complete assessment of the safety of foods and
food ingredients in relation to risks to human health and the
environment and does not guarantee the informed partici-
pation of the Member States and the appropriate scientific
bodies whose involvement is conductive to the safeguarding

Action brought on 25 July 2001 by the Commission of
the European Communities against the French Republic

(Case C-296/01)

(2001/C 259/02)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 25 July
2001 by the Commission of the European Communities,
represented by G. zur Hausen, action as Agent, and M.H. van
der Woude and V. Landes, avocats, with an address for service
in Luxembourg.

The Commission of the European Communities claims that
the Court should:

— declare that, by failing the transpose correctly or com-
pletely Articles 5(1), (2), (3) and (4), 6(2) and (5), 9(3),
11(1), (2), (3) and (6), 12(3) and (4) and 19(2), (3) and (4)

C 259/2

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Official Journal of the European Communities

15.9.2001

of Directive 90/220/EEC of 23 April 1990, as amended,
on the deliberate release into the environment of geneti-
cally modified organisms (1), the French Republic has
failed to fulfil its obligations under that directive and
Article 249 of the EC Treaty;

— contrary to the argument put forward by the French
authorities, Article 6(5) of the directive must be the
subject of a measure transposing it even as regards sectors
where the competent national authority is part of the
State administration and not a public institution;

— order the French Republic to pay the costs.

Pleas in law and main arguments

The obligation on a Member State to take all the measures
necessary to achieve the results prescribed by a directive is a
binding obligation. The period laid down in Article 23 of
Directive 90/220/EEC expired on 23 October 1991 and
transposition is still incomplete so far as concerns the following
points:

— the reagents sector is not covered by any of the numerous
measures for transposing the directive; in particular, it is
excluded from the scope of Decree 96-850 which appears
designed to sweep up the cases not covered by specific
legislative measures;

— Article 11 of Law 92-654 which makes any deliberate
release subject
to prior authorization has not been
supplemented, for all sectors, by legally binding pro-
visions concerning the dossier to be submitted (incom-
plete transposition of Article 5(2) of the directive and
Annex II thereto as amended);

— while Article 5(3) of the directive certainly gives the
competent authority some ‘latitude’ when authorizing
release, that discretion does not belong to the Member
States when transposing the directive but to the com-
petent authorities at the time of notification. In order for
those authorities to be able to have the option offered by
Article 5(3),
it is necessary for that provision to be
transposed into national law;

— Article 5(4) of the directive has not been transposed,
except so far as concerns certain orders. In referring to
orders which are being prepared, the French authorities
admit the failure to transpose the directive;

— the decrees transposing the directive provide that author-
ization is deemed to be refused if there has been no
decision on expiry of the period of 90 days laid down in
Article 6(2) of the directive. In that case, reasons are
clearly not given for the refusal by the competent
authority. Even supposing that the reasons for refusal are
disclosed to the notifier subsequently, the time-limit of
90 days laid down by the directive cannot complied with
in that way;

— the information available to the Commission does not
demonstrate that procedures or organisational rules
enabling Article 9(3) of the directive to be duly applied
have been enacted in French law;

— Article 11(1) and Annexes II and III have been only partly

transposed;

— with the exception of

two sector-based orders,

the
provisions referred to by the French authorities as
transposing Article 11(2) and (3) of the directive do not
set out with the necessary precision the matters which
the notifier must include in his notification dossier;

first

— the obligation resulting from the

indent of
Article 11(6) of the directive is not reproduced expressly
in any of the sector-based decrees. Informing the com-
petent authority and revising the information and con-
ditions are referred to by the directive as complementary,
but separate, obligations; they must accordingly be trans-
posed expressly and separately;

— Article 12(3) and (4) of the directive sets out the details
of a procedure under which the national administrative
bodies are empowered to communicate with the Com-
mission. It is thus necessary for national law to set out
for those authorities the legal framework within which
they operate;

— the Commission has not received notification of any
measure intended to transpose Article 13(2) and (4) of
the directive;

— Article 19(2) of the directive has not been transposed by
provisions capable of creating a situation that is suf-
ficiently precise, clear and transparent to enable individ-
uals to be aware of their rights and obligations. Article 21
of Law 92-654 fails to require the notifier to provide
verifiable justification in support of a request for confi-
dentiality;

— neither Law 92-654 nor the sector-based decrees (with the
exception of Decree 94-359 relating to plant protection
lay down the obligations, prescribed by
products)
Article 19(3) of the directive, to consult the notifier and
to inform him once a decision has been taken;

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Official Journal of the European Communities

C 259/3

— since the French authorities have intended to implement
the requirements flowing from Article 19(4) of
the
directive by means of a ‘public information sheet’, it is
imperative for the sheet
the matters
mentioned in that provision as incapable of being kept
confidential.

to include all

The Commission also considers that the enactment of a
transitional period after the date of expiry of the time-limit for
transposition of the directive is contrary to the obligations
under that directive.

(1) OJ L 175, 5.7.1985, p. 40.

(1) OJ L 117, 8.5.1990, p. 15.

Action brought on 27 July 2001 by the Commission of
the European Communities against the Hellenic Republic

(Case C-301/01)

(2001/C 259/03)

An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 27 July
2001 by the Commission of the European Communities,
represented by Gotz zur Hausen, Legal Adviser, and Panos
Panagiotopoulos, a national civil servant on secondment to its
Legal Service.

The Commission claims that the Court should:

— declare that, by restricting the extent of public infor-
mation to the environmental impact study, laying down
a period for public consultation which cannot exceed
15 days and providing for a transitional period which
expired in October 1994, the Hellenic Republic has failed
to fulfil its obligations under Articles 6 (2) and 12 of
Council Directive 85/337/EEC (1) of 27 June 1985 on the
assessment of the effects of certain public and private
projects on the environment;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

Article 6 (2) of Directive 85/337/EEC on the assessment of the
effects of certain public and private projects on the environ-
ment provides that all
the information gathered by the
developer is to be made available to the public. Article 2 (2) of
Joint Ministerial Decision 75308/5512/90 provides for public
access to the environmental impact study only and to no other
information. The directive also provides that the Member
States are to ensure that the public concerned is given the
opportunity to express an opinion before works begin. The
Commission takes the view that the period of 15 days set by
the joint ministerial decision is not in practice a reasonable
period for the public to express its opinion.

Action brought on 27 July 2001 by the Commission of
the European Communities against the Hellenic Republic

(Case C-302/01)

(2001/C 259/04)

An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 27 July
2001 by the Commission of the European Communities,
represented by Gotz zur Hausen, Legal Adviser, and Panos
Panagiotopoulos, a national civil servant on secondment to its
Legal Service.

The Commission claims that the Court should:

— declare that, by failing to take the necessary measures to
ensure that waste is recovered or disposed of in the
commune of Epitalio without endangering human health,
without risk to water, air, soil and plants and animals and
without causing a nuisance through noise or odours, by
granting a permit for the operation of a waste disposal
(landfill) site which does not contain the necessary
information and by allowing that facility to operate
without prior approval of an environmental impact study,
the Hellenic Republic has failed to fulfil its obligations
under Articles 4 and 9 of Council Directive
75/442/EEC (1) on waste, as amended by Directive
91/156/EEC, and Article 4 (2) of Council Directive
85/337/EEC (2) of 27 June 1985 on the assessment of the
effects of certain public and private projects on the
environment;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

Article 4 of Directive 75/442/EEC, as amended, provides that
the Member States are to take the necessary measures to
protect human health and the environment from the harmful
effects of the collection, transport, treatment, storage and
deposit of waste. Article 9 requires in addition that a permit
be granted by the competent authorities for every waste
disposal installation.