Case C-214/03: Action brought on 19 May 2003 by the Commission of the European Communities against the Republic of Austria
Date: 2003-07-05
Institutions: Court of Justice
Subjects: Austria, European Commission, air quality, environmental standard, industrial pollution, interpretation of the law, pollution control measures

5.7.2003

EN

Official Journal of the European Union

C 158/19

1. Must Article 6(3) of the Athens Protocol of 17 May 1980
for the protection of the Mediterranean Sea against
pollution from land-based sources (the Barcelona Con-
vention), which has become Article 6(1) in the revised
version, be held to have direct effect, so that any interested
party may rely on it before the national courts in an action
to halt discharges of water which are not authorised in
accordance with the procedure and criteria which it
prescribes?

2. Must the same provision be interpreted to mean that it
prohibits the discharge into a saltwater marsh communi-
cating with the Mediterranean Sea of substances which,
although not toxic, adversely affect the oxygen content
of the marine environment, without an authorisation
issued by the competent authorities of the Member States,
taking into account the provisions of the abovementioned
Protocol and of Annex III C thereto (now Annex II)?

2.

3.

4.

by failing to include in the relevant Austrian legal
provisions (Luftreinhaltegesetz für Kesselanlagen —
LRG-K and LRV-K) (law on air purity for boiler
plants) the definitions of ’new plant’ and ’existing
plant’ as set out in Article 2.9 and 2.10 of the
directive;

in Article 2.6 of

in particular by reason of the
by failing fully,
divergence of the Austrian definition of fuel from
that set out
to
incorporate in the relevant air-purity legislation the
emission limit values for sulphur dioxide, oxides of
nitrogen and dust
laid down in Article 4.1 in
conjunction with Annexes III to VII to the directive;

the directive,

by failing correctly to transpose in the LRG-K
and LRV-K Article 9(2) and (3) of the directive
concerning the calculation of the emission limit
value in multi-fuel firing units which use distillation
and conversion residues from crude-oil refining for
own consumption, alone or with other fuels,

the Republic of Austria has failed to fulfil its obligations
under Articles 2.6, 2.8, 2.9, 2.10 and 10(4)(1) of Directive
88/609, in conjunction with Annexes III to VII thereto
and Article 9(2) and (3) of that directive;

II. Order the Republic of Austria to pay the costs of the

proceedings.

Action brought on 19 May 2003 by the Commission
of the European Communities against the Republic of
Austria

Pleas in law and main arguments

(Case C-214/03)

(2003/C 158/31)

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 19 May
2003 by the Commission of the European Communities,
represented by Josef Christian Schieferer and Gregorio Valero
Jordana, of the Commission’s Legal Service, acting as Agents,
with an address for service in Luxembourg.

The applicant claims that the Court should:

I.

Rule that:

1.

by laying down in paragraph 22(1) of the Luft-
reinhalteverordnung für Kesselanlagen (regulation
on air purity for boiler plants) (LRV-K) a definition
of ’multi-fuel firing unit’ that departs from Article 2.8
of Council Directive 88/609/EEC of 24 November
1988 on the limitation of emissions of certain
pollutants into the air from large combustion plants,
as amended (1);

The Commission finds that the Republic of Austria has failed
to fulfil its obligations by failing to bring its national law into
line with the directive, which was thus improperly and
incompletely transposed, in so far as:

— it failed correctly to transpose Article 2.8 of the directive
relating to the term ‘multi-fuel firing unit’ by restricting
the term, in a manner not envisaged in the directive,
to units in which the percentage of additional fuels
contributing to the thermal input amounts to at least
20 % and thus restricting the scope of the directive in
that regard;

— it failed to transpose Article 2.9 and 2.10 of the directive
with regard to the definitions of ‘new plant’ and ‘existing
plant’;

— it failed fully to give effect to the emission limit values for
sulphur dioxide, oxides of nitrogen and dust in accord-
ance with Article 4(1) in conjunction with Annexes III
to VII, particularly in light of the definition of fuel,
which in the Austrian legal provisions is confined to
‘conventional fuels’, as a result of which only partial effect
is given to the scope of the directive;

— it failed correctly to transpose Article 9(2) and (3) of the
directive with regard to the calculation of the limit values
for multi-fuel firing units in refineries.

(1) OJ 1988 L 336, p. 1.