Case C-149/03: Action brought on 1 April 2003 by the Commission of the European Communities against the Kingdom of Belgium
Date: 2003-06-07
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, authorised catch, catch quota, conservation of fish stocks, fishery management, fishery resources, fishing controls, over-exploitation of resources, ship's flag

7.6.2003

EN

Official Journal of the European Union

C 135/15

Action brought on 28 March 2003 by the Commission of
the European Communities against the Italian Republic

2003 by the Commission of the European Communities,
represented by T. van Rijn, acting as Agent.

(Case C-143/03)

(2003/C 135/21)

The applicant claims that the Court should:

— declare that, by

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 28 March
2003 by the Commission of the European Communities,
represented by Luca Visaggio and Roberto Amorosi, acting as
Agents.

The applicant claims that the Court should:

— Declare that, by subjecting alkaline manganese batteries
containing less than 0,0005 % of mercury by weight to a
marking system requiring, in particular, indication of the
presence of heavy metals, the Italian Republic has failed
to fulfil its obligations under Article 28 EC;

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

Alkaline manganese batteries containing less than 0,0005 %
of mercury by weight do not
fall within the scope of
Council Directive 91/157/EEC on batteries and accumulators
containing certain dangerous substances.

In the absence of harmonisation of national laws as regards
such goods, subjecting them to the marking requirement
provided for in Article 5(1) and (2) of Decree No 476/97
constitutes a barrier to the free movement of goods contrary
to Article 28 EC, there being no obvious overriding reason
relating to the public interest to justify its adoption.

1.

2.

3.

4.

failing to adopt adequate provisions governing the
utilisation of the quotas allocated to Belgium for the
fishing years 1991 to 1996,

failing to ensure observance of the Community
legislation on the conservation of fishery resources
by monitoring fishing activity and adequately moni-
toring the landing and recording of catches,

failing to impose a provisional ban on fishing by
vessels flying its flag or registered in its territory
once the quota allocated to Belgium had to be
regarded as exhausted,

failing to take penal or administrative measures
against the master or any other person responsible
for fishing after the entry into force of bans on
fishing or in the absence of a quota,

the Kingdom of Belgium has failed to fulfil its obligations
under Article 5(2) of Council Regulation (EEC) No 170/
83 (1) of 25 January 1983 establishing a Community
system for the conservation and management of fishery
resources, Article 9(2) of Council Regulation (EEC)
No 3760/92 (2) of 20 December 1992 establishing a
Community system for
fisheries and aquaculture,
Articles 1 and 11(1) and (2) of Council Regulation (EEC)
No 2241/87 (3) of 23 July 1987 establishing certain
control measures for fishing activities and Articles 2,
21(1) and (2) and 31 of Council Regulation (EEC)
No 2847/93 (4) of 12 October 1993 establishing a control
system applicable to the common fisheries policy;

— order the Kingdom of Belgium to pay the costs.

Action brought on 1 April 2003 by the Commission
of the European Communities against the Kingdom of
Belgium

Pleas in law and main arguments

(Case C-149/03)

(2003/C 135/22)

An action against the Kingdom of Belgium was brought before
the Court of Justice of the European Communities on 1 April

Infringement of Article 5(2) of Regulation (EEC) No 170/83
and Article 9(2) of Regulation (EEC) No 3760/92: under these
provisions, the Member States are to lay down the criteria for
the distribution of the quotas allocated to them and detailed
rules for the utilisation of those quotas. The Commission finds
that, during the period 1991 to 1996, there was overfishing in
respect of 22 fishery resources and that, in several cases, the
quota was exceeded by more than 10 %, with the result that
the Kingdom of Belgium has failed to fulfil its obligations.

C 135/16

EN

Official Journal of the European Union

7.6.2003

Infringement of Article 1 of Regulation (EEC) No 2241/87 and
Article 2 of Regulation (EEC) No 2847/93: these provisions
require the Member States to monitor fishing activity by
vessels flying their flag. In that connection, they must carry
out all necessary inspections. From the figures concerning the
number of cases of overfishing, and the extent thereof, it is
plainly apparent that the Belgian authorities failed to take
the control measures necessary to prevent those cases of
overfishing.

Infringement of Article 11(2) of Regulation (EEC) No 2241/87
and Article 21(2) of Regulation (EEC) No 2847/93:
the
Belgian authorities clearly acted negligently in regard to the
management of the quotas by failing,
in several cases, to
impose at the appropriate time a closing date for fishing.

Infringement of Article 1(2) of Regulation (EEC) No 2241/87
and 31 of Regulation (EEC) No 2847/93: where fishing vessels
landed fish after the closing date for fishing of the relevant fish
stock or without a quota for that fish stock having been
allocated to Belgium, the masters of those vessels acted in
breach of Community law. The Belgian authorities were
therefore obliged to institute penal or administrative proceed-
ings against those masters or any other persons responsible.
The Belgian Government has provided no evidence that that
has been done.

( 1) OJ 1983 L 24, p. 1.
( 2) OJ 1992 L 389, p. 1.
( 3) OJ 1987 L 207, p. 1.
( 4) OJ 1993 L 261, p. 1.

Action brought on 7 April 2003 by the Commission of
the European Communities against the Kingdom of Spain

(Case C-157/03)

(2003/C 135/23)

The applicant claims that the Court, in upholding its appli-
cation, should:

1. Declare that, by imposing, contrary to Directives 68/
360 (1), 73/148 (2) and 90/365 (3), the obligations to
obtain a residence visa for the issue of a residence permit
to nationals of a non-Member State, who are members of
the family of a Community national who has exercised
his right to freedom of movement, and, by not granting,
contrary to Directive 64/221 (4), a residence permit as
soon as possible and, at the latest, within the six months
following the application for a permit, the Kingdom of
Spain has failed to fulfil its obligations under the EC
Treaty.

2. Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The formalities which may be required by a Member State of a
Community national exercising his right to freedom of move-
ment or of a member of his family are clearly circumscribed
by the relevant Community legislation with the result that, in
the Commission’s view, it is plainly contrary to the letter and
spirit of Community law, as laid down in Directives 68/360,
73/148 and 90/360, for a Member State to require any other
formality in connection with entry or residence.

As a consequence of that premiss, the Commission is of the
view that the Spanish legislation and practice, in accordance
with the matters established, conflict with those principles of
Community law. Essentially, the residence visa required under
Spanish legislation is an instrument enabling the national
authorities to examine — prior to entry into Spanish territory
— the reasons why a national of a non-Member State wishes
to reside for more than three months on national territory.

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 7 April
2003 by the Commission of the European Communities,
represented by Carmel O’Reilly, Legal Adviser, and by Luis
Escobar Guerrero, of its Legal Service, with an address for
service in Luxembourg.

The national of a non-Member State who is the member of the
family of a Community national exercising the right
to
freedom of movement cannot be assimilated to the national of
a non-Member State without that family tie. On the contrary,
that national of a non-Member State is the beneficiary of
derived rights under Community law and thus enjoys rights of
entry into and residence in the territory of another Member
State at the same time as the Community national.