Case C-416/02: Action brought on 19 November 2002 by the Commission of the European Communities against the Kingdom of Spain
Date: 2003-02-08
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, building regulations, health control, pollution control, swine, urban area, wastewater, water treatment

8.2.2003

EN

Official Journal of the European Union

C 31/5

The determination of the time when the fixing (finding) should
have taken place makes it possible to calculate the period
within which the own resources in question should have been
credited to the Commission’s account,
in accordance with
Article 10 of Regulation No 1552/89. Failure to comply within
that period triggers the obligation to pay default interest
pursuant to Article 11 of Regulation No 1552/89, an obli-
gation which, according to the case-law of the Court, arises
without its being necessary to examine the reasons for the
failure to comply within that period.

( 1) OJ 1994 L 293, p. 9.
( 2) OJ 1989 L 155, p. 1.
( 3) OJ 1992 L 302, p. 1.

Reference for a preliminary ruling by the Bundesarbeits-
gericht by order of that Court of 27 June 2002 in the case
of Gérard Merida against Federal Republic of Germany,
represented by the Amt für Verteidigungslasten

(Case C-400/02)

(2003/C 31/08)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundesarbeitsgericht
(Federal Labour Court) of 27 June 2002, received at the Court
Registry on 12 November 2002, for a preliminary ruling in
the case of Gérard Merida against Federal Republic of Germany,
represented by the Amt für Verteidigungslasten (Local Office
for Defence Expenditure) on the following question:

Is Article 39 EC infringed by the fact that for the purposes of
calculating the basis of assessment of interim assistance in a
case arising under Paragraph 4(1)(b) of the collective agreement
on social security account must be taken of the notional
(second sentence of Para-
German tax on emoluments
the former
if
graph 4(3)(b) of that collective agreement)
employee lives and is subject to tax abroad?

Action brought on 19 November 2002 by the Com-
the
mission of

the European Communities against

Kingdom of Spain

(Case C-416/02)

(2003/C 31/09)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 19 No-
vember 2002 by the Commission of the European Communi-
ties, represented by Gregorio Valero Jordana, of its Legal
Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

— Declare that

(a)

by failing to adopt the measures necessary to comply
with Articles 4, 9 and 13 of Council Directive 75/
442/EEC (1), amended by Directive 91/156/EEC (2),
inasmuch as it failed to take the necessary measures
to ensure that waste from the pig farm located in ‘El
Pago de la Media Legua’ is recovered or disposed of
without endangering human health and without
harming the environment and insofar as the farm
was not covered by the authorisation required under
the directive and by failing to carry out the requisite
regular checks in respect of such establishments;

(b) by failing to carry out an impact assessment prior to
the construction or modification of the project,
contrary to the requirements of Articles 2 and 4(2)
of Council Directive 85/337/EEC (3), either in its
original wording or as amended by Directive 97/11/
EC (4);

(c)

by failing to carry out the requisite hydrological
studies in the area affected by pollution, in accord-
ance with Articles 3(b), 5(1) and 7 of Council
Directive 80/68/EEC (5);

(d) by not subjecting urban waste-water

from the
agglomeration of Vera to treatment which is more
stringent than that described in Article 4, as required
under Article 5(2) of Council Directive 91/271/
EEC (6);

(e)

by failing to declare the Rambla de Mojácar a
vulnerable area, contrary to Article 3(1), (2) and (4)
of Directive 91/676/EEC (7);

the Kingdom of Spain has failed to fulfil its obligations
under the abovementioned directives; and

— Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

— Infringements (a) to (c) relate to the construction and
running of an intensive pig farm situated in ‘El pago de la
Media Legua’, in the municipal district of Vera, in the
province of Almeria. The Spanish authorities admit that
that pig farm is illegal and is not covered by a municipal
licence, so that it must be deemed not to have the
requisite authorisation required by Article 9 of Directive

C 31/6

EN

Official Journal of the European Union

8.2.2003

75/442/EEC. Furthermore, those authorities have never
denied that strong odours emanating from that farm
reach nearby housing. Also, the incorrect arrangements
for handling the slurry, which is emptied into a pit which
is too small for the size of the exploitation, and for
disposing of carcasses results in the improper dumping
of slurry and remains of animals in the surrounding area.
Finally, the Spanish authorities have not submitted any
description of
to check
whether Directive 75/442/EEC is being complied with.

the inspections carried out

Although the pig farm in question is substantial, counting
with 2 779 pigs and more than 600 suckling pigs, and is
located 600 metres from the river Antas, which the
Spanish authorities have declared an area of Community
it has not been the subject of an impact
interest,
assessment as required by Directive 85/337/EEC.

— The waste-water of the agglomeration of Vera, with a
population of more than 10 000, which is deposited in
an area which ought to have been designated as sensitive,
should be treated more stringently than merely by means
of secondary treatment. Clear evidence of the insufficient
tratement of Vera’s waste-water is the fact that
the
quantity of the chemical oxygen demand (COD) in the
sample analysed at the request of the Commission is of
353 mgO2/l, which is three times greater than the
maximum authorised for effluent from a waste treatment
station.

— By decree of 2 March 1999, the Spanish authorities
declared the sensitive areas of the Autonomous Com-
munity of Andalucia, including, in respect of Almeria, the
coastal lagoons of the Aguas and Antas rivers, whose
waters are eutrophic, with a high concentration of
nitrates. Consequently, pursuant to Article 3(2) of Direc-
tive 91/676/EEC, the Spanish authorities should have
designated the area which drains into those waters as a
vulnerable area.

( 1) Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975

L 194, p. 39).

( 2) Council Directive 91/156/EEC of 18 March 1991 amending

Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).

( 3) Council Directive 85/337/EEC of 27 June 1985 on the assessment
the effects of certain public and private projects on the

of
environment (OJ 1985 L 175, p. 40).

( 4) Council Directive 97/11/EC of 3 March 1997 amending Directive
85/337/EEC on the assessment of the effects of certain public and
private projects on the environment (OJ 1997 L 73, p. 5).

( 5) Council Directive 80/68/EEC of 17 December 1979 on the
protection of groundwater against pollution caused by certain
dangerous substances (OJ 1980 L 20, p. 43).

( 6) Council Directive 91/271/EEC of 21 May 1991 concerning urban

waste-water treatment (OJ 1991 L 135, p. 40).

( 7) Council Directive 91/676/EEC of 12 December 1991 concerning
the protection of waters against pollution caused by nitrates from
agricultural sources (OJ 1991 L 375, p. 1).

Reference for a preliminary ruling by the High Court of
Justice (England and Wales) (Chancery Division) by order
of that court dated 8 November 2002, in the case of
1) BUPA Hospitals Ltd and 2) Goldsborough Develop-
ments Ltd against the Commissioners of Customs and
Excise

(Case C-419/02)

(2003/C 31/10)

Justice of the
Reference has been made to the Court of
the High Court
European Communities by an order of
of Justice (England and Wales)
(Chancery Division) dated
8 November 2002, which was received at the Court Registry
on 20 November 2002, for a preliminary ruling in the case of
1) BUPA Hospitals Ltd and 2) Goldsborough Developments
Ltd and the Commissioners of Customs and Excise, on the
following questions:

Q u e s t i o n 1

Having regard to the relevant circumstances, the relevant
transactions and the position of the vendor companies how is
the expression ‘economic activity’ within the meaning of
Article 4(1) and (2) of Directive 77/388/EEC on VAT (1) (the
Directive) to be interpreted?

Q u e s t i o n 2

Having regard to the relevant circumstances, relevant trans-
actions, and the position of the vendor companies how is the
expression ‘supply of goods’ in Article 5(1) of the Directive to
be interpreted?

Q u e s t i o n 3

a)

Is there a principle of abuse of rights and/or abuse of the
law which (independently of the interpretation given to
the Directive) is capable of precluding the right to deduct
input tax?

b)

If so, in what circumstances would it apply?

c) Would it apply in circumstances such as those found by

the Tribunal?