Case C-184/02: Action brought on 16 May 2002 by the Kingdom of Spain against the Council of the European Union
Date: 2002-07-13
Institutions: Court of Justice
Subjects: Council of the European Union, Spain, action for annulment (EU), arrangement of working time, road transport, social legislation

C 169/24

EN

Official Journal of the European Communities

13.7.2002

Reference for a preliminary ruling by the Conseil d’Etat
by judgment of that Court of 25 January 2002 in the case
of Ligue pour la protection des oiseaux, the Association
pour la protection des animaux sauvages, Rassemblement
des opposants à la chasse, Union nationale des fédérations
départementales de chasseurs and Association nationale
des chasseurs de gibier d’eau against République française

The applicant claims that the Court should:

— annul Directive 2002/15/EC (1) of the European Parlia-
ment and of the Council on the organisation of the
working time of persons performing mobile road trans-
port activities; and

(Case C-182/02)

(2002/C 169/42)

— order the Council to pay the costs.

Reference has been made to the Court of Justice of the
European Communities by judgment of the Conseil d’Etat
(Council of State) of 25 January 2002, received at the Court
Registry on 15 May 2002, for a preliminary ruling in the case
of Ligue pour la protection des oiseaux, the Association pour
la protection des animaux sauvages, Rassemblement des
opposants à la chasse, Union nationale des fédérations départe-
mentales de chasseurs and Association nationale des chasseurs
de gibier d’eau against République française on the following
questions:

— Does Article 9(1)(c) of Council Directive 79/409 of
2 April 1979 (1) permit a Member State to derogate from
the opening and closing dates for hunting set in the light
of the objectives specified in Article 7(4) thereof?

— If so, what are the criteria which make it possible to

establish the limits of that derogation?

(1) Council Directive 79/409/EEC of 2 April 1979 on the conser-

vation of wild birds (OJ L 103 of 25.4.1979, p. 1).

Action brought on 16 May 2002 by the Kingdom of Spain
against the Council of the European Union

(Case C-184/02)

(2002/C 169/43)

An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-
ties on 16 May 2002 by the Kingdom of Spain represented by
Rosario Silva de Lapuerta, Abogada del Estado, with an address
for
the Spanish Embassy,
4-6 Boulevard Emmanuel Servais.

in Luxembourg at

service

Pleas in law and main arguments

Breach of the right to professional and commercial freedom:

— Bringing self-employed carriers within the scope of the
directive at issue infringes the fundamental right
to
exercise freely a professional or commercial occupation,
one of the general principles of law respect for which is
safeguarded by the Court of Justice.

— Breach of the principle of non-discrimination: bringing
self-employed carriers within the scope of the directive
amounts to unjustified discrimination against those car-
riers as compared with carriers who are employed by
other persons, since situations which are quite different
are being treated in the same way without there being
any objective justification for doing so; in addition, it
involves a failure to observe the terms of reference of
Article 74 EC, which requires the Council, when it takes
measures in respect of transport rates and conditions, to
take account of the economic circumstances of carriers.

Furthermore, bringing self-employed drivers within the
scope of
the directive operates as a disincentive to
the creation of transport undertakings and limits their
capacity to expand by making the legal
framework
unclear. Small operators will not know whether their
actions are within the ambit of the law relating to self-
employed persons or are within a labour relationship like
that of any employee, or, perhaps worse, will not know
whether they are subject to the limitations but not the
rights imposed or granted to the latter. In short, bringing
self-employed carriers within the scope of the directive
discriminates against them as compared with carriers
who operate through persons working for others, making
it impossible for them to carry on business in a normal
way, reducing their competitiveness and leading to their
gradual exclusion from the market.

13.7.2002

EN

Official Journal of the European Communities

C 169/25

— The object of Directive 2002/15/EC is not road safety
because it is regulates working time rather than driving
In contrast, Regulation No 3820/85 (2), which
time.
applies
self-employed and
employed, regulates driving time and breaks and rest
periods.

types of carriers,

to all

within the areas of which those economic activities are
carried on, and by restricting exclusively to municipalities
the conduct of the activity of posting advertisements,
results in giving surreptitious finance to the municipal
advertising undertaking?

— Failure to state reasons: there is a failure to state the
reasons for bringing self-employed operators within the
scope of the directive at issue. Recital 8 in the preamble
to the directive lacks precision.

(1) OJ L 80 of 23.3.2002, p. 35.
(2) Council Regulation (EEC) No 3820/85 of 20 December 1985 on
the harmonisation of certain social legislation relating to road
transport (OJ L 370 of 31.12.1985, p. 1).

3) May Article 2 (ex Article 2), Article 3(1)(a), (b) and (c) (ex
Article 3), (as amended by Article 2(3) and Article 61(1)
of the Treaty of Amsterdam), of Article 23 (ex Article 9),
of Article 27 (ex Article 29)
(b) and (d), and of
Article 31 (ex Article 37) (1) and (3) of the EC Treaty be
construed as meaning that they preclude a law of a
Member State — in this instance, Italy — which provides
for a tax on advertising and imposes payment of charges
for public bill-posting,
including that tax, payable to
municipalities which engage in the posting of bills on an
exclusive basis?

(a)

Reference for a preliminary ruling by the Giudice di Pace
of Genoa-Voltri by order of that Court of 9 April 2002 in
the case of Viacom Outdoor S.r.l. against Société GIOTTO
Immobilier S.a.r.l.

Action brought on 23 May 2002 by the Commission
of the European Communities against the Republic of
Austria

(Case C-190/02)

(2002/C 169/44)

(Case C-192/02)

(2002/C 169/45)

Reference has been made to the Court of Justice of the
European Communities by order of the Giudice di Pace
(Magistrate) of Genoa-Voltri of 9 April 2002, received at the
Court Registry on 22 May 2002, for a preliminary ruling in
the case of Viacom Outdoor S.r.l. against Société GIOTTO
Immobilier S.a.r.l. on the following questions:

1) whether it is contrary to the proper interpretation of
Articles 49 (ex Article 59) and 50 (ex Article 60) for the
law of the Italian State to introduce, govern and make
regulations for advertising tax and bill-posting charges,
restricting the management of these exclusively to Italian
municipalities, and whether the concept of the provision
of services, as provided in Article 50 (ex Article 60) of
the EC Treaty, can include the activity pursued by the
agencies of
the municipal authorities or by entities
entrusted with the operation of this field of economic
activity.

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 23 May
2002 by the Commission of the European Communities,
represented by Josef Christian Schieferer, of its Legal Service,
with an address for service in Luxembourg at the office of Luis
Escobar Guerrero, of its Legal Service, at Wagner Centre C 254,
Kirchberg, Luxembourg.

In its application, as amended by the corrigendum lodged on
28 May 2002, the applicant claims that the Court should:

1.

declare that by:

2) Must Articles 81 (ex Article 85), 82 (ex Article 86),
86 (ex Article 90) and 87 (ex Article 92) of the EC Treaty
be construed as meaning that they preclude legislation
which, by providing for a tax on outdoor advertising or a
charge for bill-posting payable to the municipalities

(a)

incorrectly transposing into Austrian law the defi-
nitions of ‘disposal’ and ‘recovery’
laid down in
Article 1(e) and (f) of Council Directive 75/442/
EEC of 15 July 1975 on waste, as amended,
in
conjunction with Annexes II A and II B thereto, and