Case C-121/03: Action brought on 19 March 2003 by the Commission of the European Communities against the Kingdom of Spain
Date: 2003-06-07
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, environmental protection, health control, livestock farming, public health, swine, waste

C 135/10

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Official Journal of the European Union

7.6.2003

The applicant claims that the Court should:

— annul Regulation (EC) No 2341/2002 (1) of 20 December
2002 fixing for 2003 the fishing opportunities and
associated conditions for certain fish stocks and groups
of fish stocks, applicable in Community waters and, for
Community vessels, in waters where catch limitations are
required, in so far as it does not allocate to Spain quotas
in proportion to the fishing opportunities in North Sea
waters allocated before its Accession;

— order the Council to pay the costs.

Pleas in law and main arguments

— Infringement of the principle of non-discrimination: with
the completion of the transitional period on 31 December
2002, the situation of Spanish fishermen is the same as
that of fishermen of the rest of the Member States and
they must enjoy equal access to waters and resources.
Although before 2003 Spain could not rely on the fishing
activities which Spanish vessels carried out in the waters
of the North Sea during the reference period 1973-1978,
as the exceptional rules laid down in the Act of Accession
applied, those activities must now be taken into consider-
ation for the purpose of adjusting the allocation key,
since only in this way will the system not be contrary to
the principle of non-discrimination. Thus the fishermen
of each Member State would be obliged to endeavour to
limit catches in proportion to what they caught before
the entry into force of the Community system of conser-
vation of resources.

loss of

— Infringement of the Act of Accession of Spain: upon
completion of the transitional period, Spain is fully
integrated into the Common Fisheries Policy, so that a
new allocation key for the resources of the North Sea is
required, based on the criteria used in 1983: historical
catches,
fishing opportunities in the fishing
grounds of non-member countries and the concept of
zones dependent on fisheries. The failure to allocate to
Spain in the contested regulation a share of the quotas in
the Community waters of the North Sea allocated before
its accession has the effect of extending the transitional
period beyond that provided for in the Act and of
infringing the provisions thereof.

— Infringement of the principle of relative stability: The
principle of relative stability is something distinct from
the allocation key fixed by the Council in 1983 in order
to apply that principle. The principle of relative stability
is of general scope and applies to the allocation in
national quotas of all catch opportunities subject to a
TAC available to the Community, while the allocation
balance established in the 1983 allocation key may be

the various
adjusted according to the evolution of
elements. The completion of
the transitional period
provided for in the Act of Accession of Spain and,
consequently, Spain’s full integration in the Common
Fisheries Policy, require that
this allocation key be
adjusted in so far as it refers to catches in the Community
waters of the North Sea, and that Spanish vessels be
allowed a percentage of the quotas distributed before
Spain’s accession, account being taken of the criteria of
the 1983 allocation key, namely historical fishing activi-
ties (as the Spanish fleet engaged in significant fishing
activities in those waters which were stopped by the
transitional prohibition on access contained in the Act of
Accession), the loss of fishing opportunities in the waters
of non-member countries and the special activities of
zones especially dependent on fisheries and related
activities.

In connection with this last criterion for setting the
allocation key, account must be taken of the fact that, in
accordance with recitals 16, 17 and 18 of the Preamble
to Regulation 2371/2002 (2), the concept of relative
stability must be extended, account being taken, inter
alia, of the ‘dependence of certain coastal communities
on fishing’ and the ‘particular needs of regions where
local populations are especially dependent on fisheries
and related activities as decided by the Council in its
Resolution of 3 November 1976’; this means that when
allocating quotas,
in accordance with the principle of
relative stability, it is necessary only to take into account
the regions whose local populations are at that time
especially dependent on fisheries and related activities,
but that, owing to developments in the socio-economic
situation of the Member States, that dependence has now
disappeared.

(1) OJ L 356, 31.12.2002, p. 12.
(2) Council Regulation of 20 December 2002 on the conservation
and sustainable exploitation of fisheries resources under the
Common Fisheries Policy, OJ L 358, 31.12.2002, p. 59.

Action brought on 19 March 2003 by the Commission of
the European Communities against the Kingdom of Spain

(Case C-121/03)

(2003/C 135/15)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 19 March

7.6.2003

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Official Journal of the European Union

C 135/11

2003 by the Commission of the European Communities,
represented by Gregorio Valero Jordana, of its Legal Service,
acting as Agent, with an address for service in Luxembourg.

handling of waste from pig farms (particularly animal
carcasses and slurry) is subject to that directive since there
is no specific Community legislation to cover all aspects
relating to the handling of such waste.

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 farms located in
the Baix Ter area, Gerona, is recovered or disposed
of without endangering human health and without
harming the environment and in so far as the farms
were not covered by the permit required under the
directive and by failing to carry out the requisite
regular checks in respect of such installations;

(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 hydrogeological
studies in the area affected by pollution, in relation
to the pig farms which are the subject of these
proceedings, contrary to Articles 3(b), 5(1) and 7 of
Council Directive 80/68/EEC (5);

(d) by exceeding, on various public water distribution
networks in the Baix Ter area, the maximum admiss-
ible concentration for the nitrate parameters laid
down in Annex I(c)(20) to Directive 80/778/EEC (6),
contrary to Article 7(6) of that directive;

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, exten-
sion and running of a large number of intensive pig farms
situated in the area of Baix Ter, Gerona. Although
the Spanish authorities claim that agricultural waste is
excluded from the scope of Directive 75/442/EEC, the

Pollution of waters in the Baix Ter catchment area caused
by the increasing volume of slurry generated by the pig
farms in that area constitutes a result contrary to the
requirements of Article 4 of Directive 75/442/EEC and is
thus a clear infringement of that provision. The Spanish
authorities themselves in their documents have acknowl-
edged such pollution, which may also be ascertained
from the results of analyses provided by the Spanish
authorities to the Commission.

On 26 September 2001, the date on which expired
the period prescribed by the reasoned opinion for the
Kingdom of Spain to comply, many of the pig farms
operating in the Baix Ter area were not covered by the
permit required under Article 9 of Directive 75/442/EEC.

The Spanish authorities have not been able to provide
evidence of the appropriate periodic inspections having
taken place in all (over 220, according to the list of pig
farms transmitted by document of 3 December 2001) or
most of the existing installations, as provided for in
Article 13 of Directive 75/442/EEC. So far as concerns
the pig farms which are the subject of the present case,
Spain has failed to fulfil its obligations under Articles 2
and 4(2) of Directive 85/337/EEC, both in the original
wording and as amended by Directive 97/11/EEC. The
Spanish authorities themselves acknowledge, essentially
in their reply to the reasoned opinion, that the pig farms
with which these proceedings are concerned have not
been the subject of an impact assessment prior to their
construction or expansion.

The argument put forward by the Spanish authorities that
Directive 80/68/EEC has not been infringed ‘since all pig
farms are subject to an administrative procedure aimed
at ensuring that such farms are handling correctly the
waste they produce and not affecting groundwater’ does
not prove that the necessary hydrogeological studies have
been carried out. Furthermore, on the final date of the
period prescribed for Spain to comply, many of the pig
farms in the Baix Ter area had still not been subjected to
the abovementioned administrative procedure.

— According to the information provided by the complain-
ant and to the replies and reports forwarded by the

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Spanish authorities to the Commission, it is clear that
various municipalities in the Baix Ter area have exceeded
on several occasions the maximum nitrate parameters
laid down in Directive 80/778/EEC,
in some cases
reaching extremely elevated concentrations.

Reference for a preliminary ruling by the Tribunale
Ordinario di Torino — Sezione del giudice per le indagini
preliminari by order of that Court of 25 February 2003 in
the criminal proceedings against Alessandro Nizza and
Giacomo Pizzi

( 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) 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 80/778/EEC of 15 July 1980 relating to the
quality of water intended for human consumption (OJ 1980
L 229, p. 11).

Reference for a preliminary ruling by the Consiglio di
Stato, Sezione Quarta by decision and order of that Court
of 28 January 2003 in the case of Ministry of Health
against Codacons and Federconsumatori, and concerning
Lega delle Cooperative

(Case C-132/03)

(2003/C 135/16)

Reference has been made to the Court of Justice of the
European Communities by decision and order of the Consiglio
di Stato, Sezione Quarta (Council of State, Fourth Chamber) of
28 January 2003, received at the Court Registry on 25 March
2003, for a preliminary ruling in the case of Ministry of Health
against Codacons and Federconsumatori, and concerning Lega
delle Cooperative on the following question:

Must Article 2(2)(b) of Regulation (EC) No 1139/98 (1), as
amended by Article 1 of Regulation (EC) No 49/2000 (2), apply
also to baby foods for infants and for young children of up to
three years of age, and, more specifically, in relation to such
products, must the adventitious contamination by material
derived from genetically modified organisms in a proportion
of no more than 1 % be indicated on the labelling?

( 1) OJ L 159 of 03.06.1998, p. 4.
( 2) OJ L 6 of 11.01.2000, p. 13.

(Case C-133/03)

(2003/C 135/17)

Reference has been made to the Court of
Justice of the
European Communities by order of the Tribunale Ordinario di
Torino — Sezione del giudice per le indagini preliminari
(Turin District Court, Chamber of the Investigating Judge) of
25 February 2003, received at the Court Registry on 25 March
2003, for a preliminary ruling in the criminal proceedings
against Alessandro Nizza and Giacomo Pizzi on the following
questions:

1. May Article 6 of Directive 68/151/EEC (1) be interpreted
as imposing an obligation upon the Member States to
establish appropriate penalties not only for failure on the
part of commercial companies to publish their balance
sheet and profit and loss statement but also for publishing
inaccurate versions of those statements or of other
company information addressed to shareholders or the
public or of any other information concerning their
economic, asset or financial position which they are
required to provide and which concern the company
itself or the group of companies to which it belongs?

the

in particular,

2. With reference to the obligation upon each Member State
to adopt ‘appropriate penalties’ for the infringements
provided for in the First Directive 68/151/EEC and the
Fourth Directive 78/660/EEC (2), must those directives
combined provisions of
and,
Article 44(2)(g) of the Treaty Establishing the European
Community, Article 2(1)(f) and Article 6 of the First
Directive and Article 2(2),
(3) and (4) of the Fourth
Directive, as amended by Directive 83/349/EEC (3) and
Directive 90/605/EEC (4), be interpreted as precluding the
legislation of a Member State under which no penalty
may be imposed for breach of the duty to publish true
and fair company documents and which lays down a
system of penalties which are not responsive to the
criteria of effectiveness, proportionality and deterrent
effect?

3. Must the directives mentioned, and in particular the
provisions of Article 44(2)(g) of the Treaty Establishing
the European Community, Article 2(1)(f) and Article 6 of
the First Directive and Article 2 (2), (3) and (4) of the
Fourth Directive, as amended by Directive 83/349/EEC
and Directive 90/605/EEC, be interpreted as precluding
the legislation of a Member State under which, in the case
of breach of the duty to publish true and fair company