Case C-98/03: Action brought on 28 February 2003 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2003-06-21
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, biotope, environmental impact, environmental protection, project evaluation, protected area

21.6.2003

EN

Official Journal of the European Union

C 146/15

2. Does Directive 85/511/EEC (1), as amended by Directive
90/423/EEC (2), afford the Member States scope to (order
or) take supplementary national measures to control foot-
and-mouth disease?

3. What limits does Community law place on a Member
State with regard to taking supplementary national
measures other than those provided for in Directive 85/
511/EEC, as amended by Directive 90/423/EEC?

( 1) OJ L 315 [1985], p. 11.
( 2) OJ L 224 [1990], p. 13.

Action brought on 28 February 2003 by the Commission
of the European Communities against the Federal Repub-
lic of Germany

(Case C-98/03)

(2003/C 146/26)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 28 February 2003 by the Commission of the European
Communities, represented by Ulrich Wölker, Legal Adviser of
the Commission of the European Communities, with an
address for service in Luxembourg.

Reference for a preliminary ruling by the College van
Beroep voor het Bedrijfsleven by judgment of that Court
of 7 January 2003 in the proceedings between Mr and
Mrs T.H.J.M. van Schaijk and Directeur van de Rijksdienst
voor de keuring van Vee en Vlees

The applicant claims that the Court should:

1. Declare that

(Case C-97/03)

(2003/C 146/25)

Reference has been made to the Court of Justice of the
European Communities by judgment of the College van Beroep
voor het Bedrijfsleven (Administrative Court for Trade and
Industry) of 7 January 2003, received at the Court Registry on
4 March 2003, for a preliminary ruling in the proceedings
between Mr and Mrs T.H.J.M. van Schaijk and Directeur van
de Rijksdienst voor de keuring van Vee en Vlees on the
following questions:

1. May a Member State derive from Community law the
power to decide to kill animals which are suspected of
being infected or contaminated with the foot-and-mouth
virus?

2. Does Directive 85/511/EEC (1), as amended by Directive
90/423/EEC (2), afford the Member States scope to (order
or) take supplementary national measures to control foot-
and-mouth disease?

3. What limits does Community law place on a Member
State with regard to taking supplementary national
measures other than those provided for in Directive 85/
511/EEC, as amended by Directive 90/423/EEC?

( 1) OJ L 315 [1985], p. 11.
( 2) OJ L 224 [1990], p. 13.

— by not providing for the duty to carry out an
assessment of the implications in the case of certain
projects outside special areas of conservation, as
referred to in Article 4(1) of Council Directive 92/
43/EEC (1) of 21 May 1992 on the conservation of
natural habitats and of wild fauna and flora, which
pursuant to Article 6(3) and (4) of the directive are
to be subject to such an assessment irrespective of
whether those projects are likely to have a significant
effect on an area of special conservation;

— by authorising emissions in a special area of conser-
irrespective of whether they are likely to

vation,
have a significant effect on that area;

— by derogating from the scope of the provisions
concerning the protection of species in the case of
certain non-deliberate effects on protected animals;

— by failing to ensure compliance with the criteria for
derogation set out in Article 16 of the directive in
the case of certain activities which are supposed to
be compatible with conservation of an area;

— by retaining provisions on the application of pestic-
ides which do not take sufficient account of the
protection of species;

— by failing to notify fishery catch legislation and/or
to ensure that such legislation contains adequate
bans on fishing,

the Federal Republic of Germany has failed to fulfil its
obligations under the directive.

C 146/16

EN

Official Journal of the European Union

21.6.2003

2. Order the Federal Republic of Germany to pay the costs.

Reference for a preliminary ruling by the Tribunale di
Firenze by order of that Court of 3 February 2003 in the
criminal proceedings against Maria Pupino

Pleas in law and main arguments

— Provisions designed to transpose Article 6(3) of the
directive are to be evaluated in terms of whether they
require an assessment of the implications in the case of
all projects likely to have a significant effect on special
areas of conservation. Whether a particular effect may be
significant cannot be decided solely by reference to
the project, but only by taking into consideration the
conservation aims of each individual area of conservation
which may be affected and the nature and extent of the
habitats and species present
in each individual area.
However, the definition of ‘projects’ contained in Para-
graph 10(1)(11)(b) and (c) of the Bundesnaturschutzge-
setz (Federal Law on Nature Conservation) does not take
into account areas of conservation. Even if theoretical
evidence is produced to show that, despite the restrictions
contained in the definition, all conceivable projects likely
to have a significant effect on special areas of conservation
are in fact covered, there would still be no guarantee that
projects with atypical effects of,
in principle, a less
apparent nature would be covered if they were likely to
be significant in an actual individual case. In particular,
small habitats containing unusual species may react much
more sensitively to influences than may be anticipated
by provisions concerning projects, which standardise
categories.

— It is contrary to Article 6(3) and (4) of the directive for
regard not to be had to pollution by noxious substances
outside a (not clearly defined) area where the effects of a
project are felt, which is the position under Paragraph 36
of the Bundesnaturschutzgesetz.

— Restricting the protection of sites where animals nest,
live or find refuge to cases where there are
breed,
deliberate effects (Paragraph 43(4) of the Bundesnatur-
schutzgesetz) is not consistent with Article 12(1)(d) of
the directive, the clear wording of which indicates that
intention is not necessary in the context of the prohibition
concerning deterioration or destruction of breeding sites
or resting places.

— Paragraph 43(4) of the Bundesnaturschutzgesetz also
provides for derogations from the provisions concerning
the protection of species in favour of intervention or
measures already authorised, without taking into account
the fact that at the time of authorisation it may not yet
have been known that a protected species is affected.

( 1) OJ L 206, 22.7.1992, p. 7.

(Case C-105/03)

(2003/C 146/27)

Reference has been made to the Court of
Justice of the
European Communities by order of the Tribunale di Firenze
(District Court, Florence) — Office of the Magistrate in charge
of preliminary enquiries — of 3 February 2003, received at
the Court Registry on 5 March 2003, for a preliminary ruling
in the criminal proceedings against Maria Pupino on the
following question:

Are Articles 2, 3 and 8 of Council Framework Decision 220
of 15 March 2001 on the standing of victims in criminal
proceedings to be interpreted as precluding national legislation
such as that in Articles 392(1a) and 398(5a) of the Italian
Code of Criminal Procedure, which do not provide that, in
respect of offences other than sexual offences or those with a
sexual background, the testimony of witnesses who are minors
under 16 may be heard at the stage of the preliminary
enquiries,
in a Special Inquiry (‘incidente probatorio’) and
under special arrangements, for example for the recording of
testimony using audiovisual and sound recording equipment.

Appeal brought on 27 February 2003 by fax, confirmed
by original lodged on 7 March 2003, by Védial SA against
the judgment delivered on 12 December 2002 by the
Fourth Chamber of the Court of First Instance of the
European Communities in Case T-110/01 between Védial
SA and the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM), the other
party being France Distribution

(Case C-106/03 P)

(2003/C 146/28)

An appeal against the judgment delivered on 12 December
2002 by the Fourth Chamber of the Court of First Instance of
the European Communities in Case T-110/01 between Védial
SA and the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM), the other party being
France Distribution, was brought before the Court of Justice of
the European Communities on 27 February 2003 by fax,
confirmed by original lodged on 7 March 2003, by Védial SA.