Judgment of the Court (Fifth Chamber) 11 July 2002 in Case C-139/00: Commission of the European Communities v Kingdom of Spain (Failure by a Member State to fulfil its obligations — Directive 89/369/EEC — Atmospheric pollution — Municipal waste incineration plants on the island of La Palma)
Date: 2002-09-28
Institutions: Court of Justice
Subjects: Spain, action for failure to fulfil an obligation, air quality, domestic waste, waste incineration

C 233/6

EN

Official Journal of the European Communities

28.9.2002

National legislation retroactively curtailing the period within which
repayment may be sought of sums paid by way of VAT collected in
breach of provisions with direct effect of Sixth Directive 77/388/EEC
of 17 May 1977 on the harmonisation of the laws of the Member
States relating to turnover taxes — Common system of value added
tax: uniform basis of assessment, such as those in Article 11A(1), is
incompatible with the principles of effectiveness and of the protection
of legitimate expectations.

( 1) OJ C 122 of 29.4.2000.

JUDGMENT OF THE COURT

2 July 2002

in Case C-115/00 (Reference for a preliminary ruling from
the Finanzgericht Münster): Andreas Hoves Internationa-
ler Transport-Service Sàrl v Finanzamt Borken (1)

1. Article 6 of Council Regulation (EEC) No 3118/93 of
25 October 1993 laying down the conditions under which
non-resident carriers may operate national road haulage services
within a Member State precludes national provisions of a host
Member State which entail the latter levying vehicle tax on the
use of motor vehicles for the carriage of goods by road on the
ground that those vehicles have their regular base in the territory
of that host Member State, when they are registered in the
Member State of establishment and are used in the host
Member State to carry out cabotage by road, in accordance
with authorisations lawfully issued by the Member State of
establishment.

2. Article 5 of Council Directive 93/89/EEC of 25 October 1993
on the application by Member States of taxes on certain vehicles
used for the carriage of goods by road and tolls and charges for
the use of certain infrastructures precludes national provisions
of a host Member State, within the meaning of Article 1(1) of
Regulation No 3118/93, which entail the levying by the latter
of vehicle tax on the use of motor vehicles for the carriage of
goods by road on the ground that those vehicles have their
regular base in the territory of that host Member State, when
they are registered and the tax referred to in Article 3(1) of that
directive has been paid in the Member State of establishment
and those vehicles are used in the host Member State for
cabotage by road, in accordance with authorisations lawfully
issued by the Member State of establishment.

(Transport of goods by road — Tax on motor vehicles —
Member State of registration)

(1) OJ C 163 of 10.6.2000.

(2002/C 233/09)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

JUDGMENT OF THE COURT

(Fifth Chamber)

11 July 2002

In Case C-115/00: Reference to the Court under Article 234
EC by the Finanzgericht Münster (Germany) for a preliminary
ruling in the proceedings pending before that court between
Andreas Hoves Internationaler Transport-Service Sàrl and
Finanzamt Borken, on the interpretation of Article 6 of Council
Regulation (EEC) No 3118/93 of 25 October 1993 laying
down the conditions under which non-resident carriers may
operate national road haulage services within a Member State
(OJ 1993 L 279, p. 1) and Article 5 of Council Directive 93/
89/EEC of 25 October 1993 on the application by Member
States of taxes on certain vehicles used for the carriage of
goods by road and tolls and charges for the use of certain
infrastructures (OJ 1993 L 279, p. 32), the Court, composed
of: G.C. Rodríguez Iglesias, President, P. Jann, F. Macken,
N. Colneric and S. von Bahr (Presidents of Chambers), C. Gul-
mann, D.A.O. Edward, A. La Pergola,
J.-P. Puissochet,
M. Wathelet
(Rapporteur), R. Schintgen, V. Skouris and
J.N. Cunha Rodrigues, Judges; D. Ruiz-Jarabo Colomer, Advo-
for the
cate General; H.A. Rühl, Principal Administrator,
Registrar has given a judgment on 2 July 2002, in which it has
ruled:

in Case C-139/00: Commission of the European Communi-
ties v Kingdom of Spain (1)

its obligations —
(Failure by a Member State to fulfil
Directive 89/369/EEC — Atmospheric pollution — Munici-
pal waste incineration plants on the island of La Palma)

(2002/C 233/10)

(Language of the case: Spanish)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-139/00, Commission of the European Communities
(Agent: G. Valero Jordana) v Kingdom of Spain (Agent: N. Díaz

28.9.2002

EN

Official Journal of the European Communities

C 233/7

Abad): Application for a declaration that, by failing to take the
measures necessary in order to ensure, as regards the three
incineration furnaces installed at Mazo and Barlovento on the
island of La Palma (Spain), the application of:

— Article 2 of Council Directive 89/369/EEC of 8 June
1989 on the prevention of air pollution from new
municipal waste incineration plants (OJ 1989 L 163,
p. 32), inasmuch as those furnaces are operating without
the required prior authorisation:

— Article 6 of that directive, inasmuch as, with regard to

those furnaces, the competent authorities

— have not given prior approval for the sampling and
measurement procedures and have not determined
the location of the measurement points concerned;

— have not laid down any measurement programme;

— Article 7 of that directive, inasmuch as those furnaces are
not equipped with auxiliary burners, which would make it
possible to maintain the minimum combustion tempera-
ture of 850C, particularly during start-up and shut-down
operations,

the Kingdom of Spain has failed to fulfil its obligations under
that directive;

2. Dismisses the remainder of the action;

— have not taken periodic measurements in respect of

the parameters prescribed by that article;

3. Orders the Commission of the European Communities to pay
one third of the costs and the Kingdom of Spain two thirds of
the costs.

— have not given prior approval for the sampling and
measurement procedures and have not determined
the location of the measurement points concerned;

(1) OJ C 192 of 8.7.2000.

— have not laid down any measurement programme;

— Article 7 of that directive, inasmuch as those furnaces are
not equipped with auxiliary burners, which would make
it possible to maintain the minimum combustion tem-
perature of 850oC, particularly during start-up and shut-
down operations,

the Kingdom of Spain has failed to fulfil its obligations under
that directive, the Court (Fifth Chamber), composed of: P. Jann,
President of the Chamber, D.A.O. Edward and C.W.A. Timmer-
mans (Rapporteur), Judges; P. Léger, Advocate General; H. von
Holstein, Deputy Registrar, has given a judgment on 11 July
2002, in which it:

1. Declares that, by failing to adopt the measures necessary in
order to ensure, as regards the three incineration furnaces
installed at Mazo and Barlovento on the island of La Palma,
the application of:

JUDGMENT OF THE COURT

(Sixth Chamber)

9 July 2002

in Case C-181/00 (Reference for a preliminary ruling from
the Supremo Tribunal Administrativo): Flightline Ltd v
Secretário de Estado dos Transportes e Communicações,
Transportes Aéreos Portugueses SA (TAP) (1)

(Articles 3(2) and 4(1)(a) and (d) of Regulation (EEC)
No 2408/92 — Imposition of public service obligations
on scheduled air services serving a peripheral region —
Compatibility with Member States’ power to restrict cabo-
tage until 1 April 1997 — Interpretation of Article 1(e) of
Decision 94/698/EC)

(2002/C 233/11)

(Language of the case: Portuguese)

— Article 6 of Council Directive 89/369/EEC of 8 June
1989 on the prevention of air pollution from new
municipal waste incineration plants, inasmuch as, with
regard to those furnaces, the competent authorities

(Provisional translation; the definitive translation will be published
in the European Court Reports)

— have not taken periodic measurements in respect of

the parameters prescribed by that article;

In Case C-181/00: Reference to the Court under Article 234
EC by the Supremo Tribunal Administrativo (Portugal) for a