Case C-221/03: Action brought on 22 May 2003 by the Commission of the European Communities against the Kingdom of Belgium
Date: 2003-07-19
Institutions: Court of Justice
Subjects: Belgium, European Commission, Province of Flemish Brabant, Province of Walloon Brabant, action for failure to fulfil an obligation, chemical salt, national implementing measure, water pollution

C 171/16

EN

Official Journal of the European Union

19.7.2003

As regards the second proceedings

5.

6.

So long as a national of a Member State does not himself
invoke the right of residence as the recipient of services
vis-à-vis the Member State in whose territory he is
residing, does Community law as it stands at present
preclude that Member State from not regarding that
person as a national protected by a right of residence
under Community law?

Is the term ‘recipient of services’ in the context of freedom
to provide services to be construed as meaning that, even
where a person stays in another Member State for a long
period, possibly longer than six months, is arrested there
for an offence, is unable to give a fixed abode or residence
and, furthermore, has no money or luggage, residence in
another Member State itself provides sufficient grounds
for having to assume that tourist and other services
associated with short-term residence are received such as,
for example, accommodation and the consumption of
meals?

Action brought on 22 May 2003 by the Commission
of the European Communities against the Kingdom of
Belgium

(Case C-221/03)

(2003/C 171/22)

An action against the Kingdom of Belgium was brought before
the Court of Justice of the European Communities on 22 May
2003 by the Commission of the European Communities,
represented by G. Valero Jordana, acting as Agent, assisted by
M. van der Woode and T. Cellingsworth, lawyers, with an
address for service in Luxembourg.

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

— declare that the Kingdom of Belgium has not complied
with its obligations under Directive 91/676/EEC (1):

— as regards the Flemish Region, by failing to adopt
the laws, regulations or administrative provisions
and to take the measures necessary fully to transpose
and implement Articles 3(1) and (2), 4, 5 and 10 of
Directive 91/676/EEC;

— as regards the Walloon Region, by failing to adopt
the laws, regulations or administrative provisions
and to take the measures necessary fully to transpose
and implement Articles 3(1) and (2) and 5 of
Directive 91/676/EEC;

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

Directive 91/676/EEC lays down a progressive procedure
which the Member State are required to follow in order to
reduce and prevent water pollution caused or induced by
nitrates from agricultural sources. To that end, they are to
establish which groundwaters, surface freshwaters and coastal
waters in their territory are affected by pollution by nitrates
from agricultural sources or which could be so affected
(Article 3(1)). Once those waters have been defined, Member
State must designate ‘vulnerable zones’ (Article 3(2)). They
must then establish a code or codes of good agricultural
practice, to be implemented by farmers on a voluntary basis
(Article 4). Finally, Member States are to establish action
programmes in respect of all vulnerable zones, which must
consist of several measures laid down in the directive
(Article 5). The directive provides that Member States are
to submit a report to the Commission every four years
(Article 10).

According to the Commission, Belgium appears to consider
that the transposition and implementation of the directive in
Belgian law come under the competence of the regions.
According to the Belgian authorities, the federal authority is
competent only to designate the coastal and marine waters
referred to in Article 3(1) and in paragraph A(3) of Annex I to
the directive. That argument is not relevant in Community
law. It is for the competent authorities of each Member State
to ensure the full transposition of the directive. Moreover, as
regards the federal authority, the Commission does not have
knowledge of any measure designating marine or coastal
waters. As regards the legislation of the Flemish Region and
the Walloon Region relating to transposition of the directive,
the Commission notes that:

— the Flemish Region has not adopted any provision which
designates waters affected by pollution or which could be
so affected, in breach of Article 3(1) of the directive. As
for vulnerable zones, it has not taken account of the
procedure and criteria laid down in Article 3 for their
designation in its territory. Moreover, the Flemish Code
of Good Agricultural Practice does not satisfy the require-
ments of Article 4 and of Annex II to the directive,
nor does the Flemish action programme satisfy the
requirements of Article 5 and of Annex III to the directive,
the vulnerable zones
since it does not apply to all

19.7.2003

EN

Official Journal of the European Union

C 171/17

designated by the Flemish Region and is incomplete.
Finally,
the report on the Flemish Region does not
reproduce all the documents and information required by
Article 10 in conjunction with Annex V to the directive.

Produttori Olivicoli Laziali (APOL) and Associazione Italiana
Produttori Olivicoli (AIPO), represented by Emilio Cappelli,
Paolo De Caterini and Andrea Bandini, of the Rome Bar.

— The Walloon Region has infringed Articles 10(2) and 12
of the directive in that the procedure of defining waters
and subsequently designating vulnerable zones covers
only a part of its territory and was finished belatedly and
the designation of vulnerable zones remains insufficient
to date. In addition, the competent Walloon authority did
not take into account the pollution of coastal and marine
waters when identifying waters affected by pollution and
designating vulnerable zones, in breach of Article 3 of
the directive. It also infringed Article 5 of the directive,
since after it designated two vulnerable zones in its
territory the Walloon Region should have established
action programmes within the prescribed period, whereas
those programmes have not yet been adopted to date.

( 1) Council Directive 91/676/EEC of 12 December 1991 concerning
the protection of waters against pollution caused by nitrates from
agricultural sources (OJ L 375 of 21.12.1991, p. 1).

The appellants claim that the Court should:

— set aside the judgment of Court of First Instance (Second
Chamber) of 6 March 2003 in Joined Cases T-61/00 and
T-62/00.

Pleas in law and main arguments

The appellants allege that the judgment of the Court of First
Instance is vitiated on the following grounds:

— erroneous interpretation and misapplication of the prin-

ciple of force majeure;

— erroneous interpretation and misapplication of the prin-
ciple of proportionality and of Articles 9(1) and 17(2)(b)
of Regulation No 355/77; inadequate reasoning inasmuch
as it was manifestly illogical and contradictory;

— breach of the rights of the rights of the defence for failure

to fulfil the obligation to carry out an inquiry;

— failure to rule on whether a measure of inquiry was

appropriate.

Appeal brought on 21 May 2003 by Associazione Produt-
tori Olivicoli Laziali (APOL) and Associazione Italiana
Produttori Olivicoli (AIPO) against the judgment deliver-
ed on 6 March 2003 by the First Chamber of the Court of
First Instance of the European Communities in Joined
Cases T-61/00 and T-62/00 Associazione Produttori Oli-
vicoli Laziali (APOL) and Associazione Italiana Produttori
Olivicoli (AIPO) v Commission

Action brought on 22 May 2003 by the Commission of
the European Communities against the French Republic

(Case C-225/03)

(2003/C 171/24)

(Case C-222/03 P)

(2003/C 171/23)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 22 May
2003 by the Commission of the European Communities,
represented by L. Ström and F. Simonetti, acting as Agents,
with an address for service in Luxembourg.

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

An appeal against the judgment delivered on 6 March 2003
by the First Chamber of the Court of First Instance of the
European Communities in Joined Cases T-61/00 and T-62/
(APOL) and
00 Associazione Produttori Olivicoli Laziali
(AIPO) v Com-
Associazione Italiana Produttori Olivicoli
mission was brought before the Court of
the
Justice of
European Communities on 21 May 2003 by Associazione

1.

declare that by failing to adopt all the laws, regulations
and administrative provisions necessary to comply with
Directive 98/79/EC of the European Parliament and of
the Council of 27 October 1998 on in vitro diagnostic
medical devices (1) or, in any event, by failing to notify
the Commission of such provisions, the French Republic
has failed to fulfil its obligations under that directive;