Case C-407/03: Action brought on 29 September 2003 by the Commission of the European Communities against the Republic of Finland
Date: 2003-11-15
Institutions: Court of Justice
Subjects: European Commission, Finland, action for failure to fulfil an obligation, environmental impact, impact study

C 275/36

EN

Official Journal of the European Union

15.11.2003

Reference for a preliminary ruling by the Tribunal d’in-
stance du VIIème arrondissement de Paris by judgment of
that Court of 21 August 2003 in the case of Waterman SA
against Directeur Général des Douanes et Droits Indirects

(Case C-400/03)

(2003/C 275/53)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Tribunal d’instance
du VIIème arrondissement de Paris of 21 August 2003,
received at the Court Registry on 26 September 2003, for a
preliminary ruling in the case of Waterman SA against
Directeur Général des Douanes et Droits Indirects on the
following question:

Is the Explanatory Note to the Combined Nomenclature
relating to subheadings 4202 12 11 and 4202 12 19, which
clarifies the term ‘in the form of plastic sheeting’ as follows: ‘if
a container has an outer material that is a combination of
materials where the outer layer being visible to the naked eye
is plastic sheeting (e.g., woven fabric of textile fibres in
combination with plastic sheeting) it is irrelevant for classifi-
cation purposes whether the sheeting was manufactured
separately before creating the combined material or whether
the plastic layer is the result of applying a coating or covering
of plastics to the material ... provided that the resultant outer
layer being visible to the naked eye has the same visual
appearance as an applied layer of manufactured plastic sheet-
ing’, contrary to the tariff?

Do the provisions of Community law relating to restrictions
on the marketing of dangerous substances and preparations,
and in particular the provisions of Directive 76/769 (1) and
Directive 94/60 (2) of 20 December 1994, prohibit the placing
on the market for sale to the public of drying agent products
containing lead compounds classified as toxic for reproductive
purposes, or do those provisions permit the relevant dero-
gation laid down for ‘artists’ paints’ to be applied to those
products?

(1) Council Directive 76/769/EEC of 27 July 1976 on the approxi-
mation of the laws, regulations and administrative provisions of
the Member States relating to restrictions on the marketing and
use of certain dangerous substances and preparations (OJ L 262
of 27.9.1976, p. 201).
(2) European Parliament

and Council Directive 94/60/EC of
20 December 1994 amending for the 14th time Directive 76/
769/EEC on the approximation of
the laws, regulations and
administrative provisions of the Member States relating to restric-
tions on the marketing and use of certain dangerous substances
and preparations (OJ L 365 of 31.12.1994, p. 1).

Action brought on 29 September 2003 by the Com-
mission of the European Communities against the Repub-
lic of Finland

(Case C-407/03)

(2003/C 275/55)

Reference for a preliminary ruling by the Tribunal de
Grande Instance du Mans by judgment of that Court of
8 September 2003 in the case of The Procureur de la
Republique against Oliver Dupuy and Hervé Rouvre

An action against
the Republic of Finland was brought
before the Court of Justice of the European Communities on
29 September 2003 by the Commission of the European
Communities, represented by M. van Beek and M. Huttunen,
acting as Agents, with an address for service in Luxembourg.

(Case C-404/03)

(2003/C 275/54)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Tribunal de
Grande Instance du Mans (Regional Court, Le Mans) of
8 September 2003, received at the Court Registry on 29 Sep-
tember 2003, for a preliminary ruling in the case of The
Procureur de la Republique against Oliver Dupuy and Hervé
Rouvre on the following question:

The Commission claims that the Court should:

1. Declare that, by failing to require in its legislation with
sufficient legal certainty that an appropriate assessment
is to be made with respect to all projects, including those
impact
which are the subject of an ‘environmental
assessment’, the Republic of Finland has failed to fulfil its
obligations under Article 6(3) of Council Directive 92/
43/EEC of 21 May 1992 on the conservation of natural
habitats and of wild fauna and flora (1);

2. Order the Republic of Finland to pay the costs.

15.11.2003

EN

Official Journal of the European Union

C 275/37

Pleas in law and main arguments

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

Finland has failed to fulfil its obligations under the nature
directive by failing to require in its legislation with sufficient
legal certainty that an appropriate assessment is to be made in
respect of all projects, including those which are the subject of
an environmental impact assessment. That fact alone suffices
to found the present action.

Finland took the view in its response to the letter of formal
notice that if
the Environmental Impact Assessment Law
applies to a project, the explanations made in connection with
the environmental impact assessment procedure may be the
appropriate assessment within the meaning of Paragraph 65 of
the Nature Protection Law. According to Finland, overlapping
procedures are thus prevented. Finland repeated its view in its
reply to the reasoned opinion.

In so far as Finland refers to difficulties in practice in
bringing its legislation into line with its Treaty obligations, the
Commission recalls the settled case-law of the Court of Justice
which says that internal difficulties within the State connected
with the conditions in which laws and regulations are drafted
cannot release a Member State from its obligations under
Community law. Similarly, in accordance with the settled case-
law of the Court of Justice, when assessing whether a Member
State has failed to fulfil its obligations of membership, regard
must be had to the situation of the Member State as it is at the
expiry of the time-limit set in the reasoned opinion.

As yet, it has not yet come to the knowledge of the Commission
that the necessary measures for aligning national legislation
with Article 6(3) of the nature directive have been carried out,
or at least they have not been notified to the Commission.

1.

declare that the Kingdom of Belgium:

— has failed to fulfil its obligations under Article 18
EC and Directive 90/364/EEC on the right of
residence, by making the right of residence of
citizens of the Union subject to the condition that
they have sufficient personal resources;

— has failed to fulfil its obligations under Directive 90/
364/EEC on the right of residence (1), under Article 4
of Directive 68/360/EEC on the abolition of restric-
tions on movement and residence within the Com-
munity for workers of Member States and their
families (2), under Article 4 of Directive 73/148/EEC
on the abolition of restrictions on movement and
residence within the Community for nationals of
Member States with regard to establishment and the
provision of services (3), under Article 2 of Directive
93/96/EEC on the right of residence for students, (4)
and under Article 2 of Directive 90/365/EEC on the
right of residence for employees and self-employed
persons who have
ceased their occupational
activity (5), by providing for the possibility to give
automatic notification of an order to leave the
country to citizens of the Union who have not
produced the documents necessary to obtain a
residence permit within a prescribed period;

2.

order the Kingdom of Belgium to pay the costs.

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

Pleas in law and main arguments

The Belgian legislation and administrative practice infringe
Community law in that they lay down:

Action brought on 30 September 2003 by the Com-
the
mission of

the European Communities against

Kingdom of Belgium

— the condition of possession of

sufficient personal

resources.

(Case C-408/03)

(2003/C 275/56)

An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities on
30 September 2003 by the Commission of the European
Communities, represented by M. Condou Durande and D. Mar-
tin, acting as Agents, with an address for service in Luxem-
bourg.

Article 1 of Directive 90/364/EEC requires that the citizen
of the Union proves that he has, for himself and the
members of his family, sufficient resources, but does not
require that the resources are his. The Directive introduces
in respect of the host Member State a flexible system of
guarantees which evolves over time, intended to allow
the citizen of the Union to move easily within the
territory of the Member States without having to prove
that he has means of subsistence for the entire duration
of his stay. However, the system of the Belgian authorities
seeks to introduce additional guarantees in order to avoid
ab initio the citizen of the Union becoming a burden on
the social assistance system, which is inherently contrary
to the spirit of Directive 90/364/EEC.