Case C-14/03: Action brought on 13 January 2003 by the Commission of the European Communities against the Republic of Austria
Date: 2003-02-22
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, air quality, national implementing measure, ozone, pollution control, public awareness campaign

22.2.2003

EN

Official Journal of the European Union

C 44/19

Action brought on 10 January 2003 by Commission of
the European Communities against Republic of Finland

Action brought on 13 January 2003 by the Commission
of the European Communities against the Republic of
Austria

(Case C-10/03)

(2003/C 44/34)

(Case C-14/03)

(2003/C 44/35)

An action against the Republic of Finland was brought
before the Court of Justice of the European Communities on
10 January 2003 by the Commission of
the European
Communities, represented by C. Tufvesson and M. Huttunen,
with an address for service in Luxembourg.

The applicant claims that the Court should:

(1) declare that, by failing to adopt the laws, regulations and
administrative measures required by Directive 1999/42/
EC of the European Parliament and of the Council (1) of
7 June 1999 establishing a mechanism for the recognition
of qualifications in respect of the professional activities
covered by the Directives on liberalisation and transitional
measures and supplementing the general systems for the
recognition of qualifications, or at least in failing to notify
those measures to the Commission, the Republic of
Finland has failed to fulfil its obligations, and

(2) order the Republic of Finland to pay the costs.

Pleas in law and main arguments

According to Article 249 of the EC Treaty, a directive is
binding, as to the result to be achieved, upon each Member
State, but leaves to the national authorities the choice of form
and methods.

The Member States must adopt the measures necessary to
incorporate the directive in the national legal system by the
fixed and must notify those measures to the
time limit
Commission without delay.

The Commission finds that the Republic of Finland has not yet
adopted those measures, or at least has not notified them to it.

It is settled law that the Member States may not plead internal
circumstances or practical problems to justify a failure to
implement by the date fixed.

( 1) OJ L 201 of 31 July 1999, p. 77.

An action against the Republic of Austria was brought
before the Court of Justice of the European Communities
on 13 January 2003 by the Commission of the European
Communities, represented by J.C. Schieferer, of
its Legal
Service, and L. Escobar Guerrero, of its Legal Service, with an
address for service at Wagner Centre C 254, Luxembourg-
Kirchberg.

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

(a)

declare that the Republic of Austria has failed to fulfil its
obligations under Article 5 of Council Directive 92/72/
EEC on air pollution by ozone (1), in conjunction with
Annex I, points 3 and 4, thereto, in that it has laid down:

(1)

(2)

(3)

a population information threshold (early warning
stage) which is 20 µg/m3 higher than that in Annex I,
point 3, to the Directive,

contrary to Article 5 of the Directive, the require-
ment that the thresholds value be exceeded at two
measuring points at
least before the public is
informed, and

a mean value over three hours instead of over one
hour, as laid down in Annex I, points 3 and 4, to
the Directive

and therefore has not fully ensured, in accordance with
the circumstances provided for in the Directive, that the
population will be informed or warned when thresholds
are exceeded. The Republic of Austria has accordingly
failed fully to comply with Directive 92/72/EEC;

(b) order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The Republic of Austria has failed fully to implement in
Austrian law the provisions in Directive 92/72/EEC concerning
the level of the threshold for ozone concentrations in the air
(Annex I, point 3, to the Directive), the requirement that the
public be informed when values are exceeded at a single
measuring point (Article 5 of the Directive) and the mean
values used in setting thresholds (Annex I, points 3 and 4, to
the Directive).

C 44/20

EN

Official Journal of the European Union

22.2.2003

Population information threshold:

considered likely to remain at or exceed that level. The
Directive does not provide for such a restrictive requirement.

Article 5 of the Directive provides that public information is
triggered by exceeding the threshold in Annex I, point 3,
while the Austrian law on ozone (the Ozongesetz) does not
differentiate between the three stages laid down therein (early
warning, stage I warning and stage II warning) with respect to
public information. While Annex I to the Austrian Ozongesetz
provides that a preliminary warning is triggered only when a
threshold value of 0,200 mg/m3 is exceeded (200 µg/m3),
Article 5 of the Directive in conjunction with Annex I, point 3,
thereto sets the threshold at 180 µg/m3 (0,180 mg/m3).

Threshold values exceeded at two measuring points:

Under the Austrian Ozongesetz, the early warning stage for an
ozone monitoring area is triggered only when the warning
value has been exceeded at at least two measuring points in an
ozone monitoring area within the last 12 hours and is

Setting of thresholds as the mean value over one hour:

The Austrian Ozongesetz defines warning levels as a mean
value in mg/m3 over three hours. In contrast, thresholds under
Annex I, points 3 and 4, to the Directive are set as mean values
over one hour. The Austrian definition can result
in a
substantially lower number of warnings, that is, cases of
information being provided to the public, than required under
the Directive.

Those three differences as regards the determination and
establishment of threshold values can result in the Austrian
public being informed to a lesser extent than provided for in
Article 5 of the Directive,
in conjunction with Annex I,
points 3 and 4 thereto.

(1) OJ 1992 L 297, p. 1.