Case C-67/02: Action brought on 28 February 2002 by the Commission of the European Communities against Ireland
Date: 2002-05-04
Institutions: Court of Justice
Subjects: European Commission, Ireland, action for failure to fulfil an obligation, quality standard, shellfish farming, water analysis

4.5.2002

EN

Official Journal of the European Communities

C 109/33

Action brought on 28 February 2002 by the Italian
Republic against the Commission of the European Com-
munities

under Article 87(3) of the Treaty. That constitutes not
only a methodological error but also a failure to state
reasons.

(Case C-66/02)

(d)

(2002/C 109/56)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 28 February 2002 by the Italian Republic,
represented by U. Leanza, acting as Agent, and M. Fiorilli,
avvocato dello Stato.

The applicant claims that the Court should:

— Annul the Commission’s Decision of 11 December 2001
in proceeding no C-54/A/2000/EC against the Italian
Republic, notified on 13 January 2002, in that there are
insufficient grounds for holding that the fiscal measures
accompanying the reform of the Italian banking system
constitute ‘State aid’;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The Italian Government claims that the contested decision is
unlawful for the following reasons:

(a) The Commission failed to comply with the obligation to
state the reasons upon which the adopted decision was
based.

(b) The law, which has been called in question with regard
to the effect on competition of the accompanying fiscal
measure, must be regarded as the final part of a process
of reform of the Italian system of credit and, therefore, as
part of an economic reform which should be assessed in
its general and Community law context. The relevance of
that law cannot be appreciated unless the state of the
sector prior to the reform is taken into account. The
contested decision wholly fails to consider those aspects.

(c)

In addressing the Italian Government’s counter-argu-
ments the Commission does not distinguish between
those concerned with the issue whether
the fiscal
measures under investigation may be characterised as
‘State aid’ and those concerned with the alternative issue
whether, if those measures are found to be ‘State aid’,
they qualify for exemption. The Commission possessed
all the information required to assess whether the law in
question constituted a prohibited ‘State aid’ within the
meaning of Article 87(1) of the Treaty, or whether it may
be considered to be compatible with the common market

Specifically as regards the reference to Article 87(3)(b) of
the Treaty, reconstruction of the origins of the Ciampi
law and of Legislative Decree No 153/99 clearly shows
how the Italian legislature sought, by means of the
various measures adopted, to bring about a significant
structural change in the Italian market
for banking
services: the full and final privatisation of all Italian banks.
In order to achieve that objective it was necessary for the
banks to divest themselves of any controlling interests
still held in savings banks and local banks. The elimination
or reduction of the Italian banks’ substantial and persist-
ent holdings of public funds, or at least of funds that are
not attractive to private investors did not, contrary to
the Commission’s clear finding, distort competition by
favouring the recipient undertakings over others but, as
in the case of the southern Italian public banks, resulted
in the reduction of distortions existing prior to the reform
in question between genuinely private banks and those
which are private in form only, but not as regards
the control of capital.
In the opinion of the Italian
Government, the full and final privatisation of the Italian
banks constitutes a ‘project of common European interest’
which, under Article 87(3)(b), justifies a system of aid to
promote its implementation.

Action brought on 28 February 2002 by the Commission
of the European Communities against Ireland

(Case C-67/02)

(2002/C 109/57)

An action against Ireland was brought before the Court of
Justice of the European Communities on 28 February 2002 by
the Commission of the European Communities, represented
by Michael Shotter, acting as agent, with an address for service
in Luxembourg

The Applicant claims that the Court should:

— declare that Ireland has failed to fulfill its obligations
under Council Directive 79/923/EEC (1) on the quality
required of shellfish waters by reason of its failure to
adopt programmes for all of
its designated shellfish
waters in accordance with Article 5 of the Directive;

C 109/34

EN

Official Journal of the European Communities

4.5.2002

— order Ireland to pay the costs.

The applicant claims that the Court should:

Pleas in law and main arguments

The adoption by Ireland of the Quality of Shellfish Waters
(Amendment) Regulations 2001 brought its legislation into
conformity with Article 5 of Directive 79/923/EEC by requir-
ing programmes in respect of all designated waters. The
Commission is not, however, in possession of any information
indicating that Ireland has similarly rectified its position with
regard to its failure to adopt all the programmes required by
Article 5 of the directive. It is not sufficient merely to introduce
the requirement into national law — the programmes must be
established in practice in accordance with Article 5.

The Commission is in possession of official confirmation by
the Irish authorities that no pollution prevention programme
for designated shellfish waters had been adopted as of
14 December 2000. Subsequently, the Commission has not
been informed of any change to this position, whereas,
pursuant to Article 5 of the directive, programmes should
have been in place for all designated waters within six years of
the designation.

The Commission is, therefore, of the opinion that Ireland has
failed to fulfill its obligations under the directive.

(1) OJ L 281, 10.11.1979, p. 47.

(1) declare that, by failing to adopt the laws, regulations and
administrative provisions necessary in order to comply
with Council Directive 96/48/EC of 23 July 1996 on the
interoperability of the trans-European high-speed rail
system (1), or at any rate to communicate the same to the
Commission, the Republic of Austria has failed to fulfil
its obligations under that directive;

(2) order the defendant to pay the costs.

Pleas in law and main arguments

The third paragraph of Article 249 EC provides that a directive
is to be binding, as to the result to be achieved, on each
Member State to which it is addressed. According to the first
paragraph of Article 10 EC, Member States are to take all
appropriate measures, whether general or specific, to ensure
fulfilment of the obligations arising out of the Treaty or
resulting from actions taken by the institutions of the Com-
munity.

law by the due date,

The Member States are obliged to transpose the directive into
national
the
transposition process is completed before the expiry of the
time-limit fixed for transposition. That time-limit expired on
8 April 1999, but Austria has not adopted the necessary
measures.

in such a way that

(1) OJ 1996 L 235, p. 6.

Action brought on 1 March 2002 by the Commission of
the European Communities against the Italian Republic

Action brought on 28 February 2002 by the Commission
of the European Communities against the Republic of
Austria

(Case C-70/02)

(2002/C 109/59)

(Case C-68/02)

(2002/C 109/58)

An action against
the Republic of Austria was brought
before the Court of Justice of the European Communities on
28 February 2002 by the Commission of
the European
Communities, represented by Claudia Schmidt, of the Com-
mission’s Legal Service, and Marie Wolfcarius, Legal Adviser,
with an address for service in Luxembourg at the office of Luis
Escobar Guerrero, Legal Adviser, Wagner Centre C 254,
Kirchberg.

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 1 March
2002 by the Commission of the European Communities,
represented by A. Aresu and M. Shotter, acting as Agents.

The applicant claims that the Court should:

— Declare that, by not having adopted all the measures
necessary to implement Articles 8(6) and 9(b) of Directive
97/66/EC of
the
Council (1) of 15 December 1997 concerning the pro-
cessing of personal data and the protection of privacy in
the telecommunications sector, the Italian Republic has
failed to fulfil its obligations under that directive;

the European Parliament and of