Case C-408/03: Action brought on 30 September 2003 by the Commission of the European Communities against the Kingdom of Belgium
Date: 2003-11-15
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, residence permit

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.

C 275/38

EN

Official Journal of the European Union

15.11.2003

— the possibility of giving notification of an order to leave
the territory to citizens of the Union who have not
produced the documents necessary for the issue of a
residence permit within the prescribed period.

A Member State may refuse or terminate the right of
residence of a citizen of the Union only if the conditions
of this right are not or are no longer fulfilled. By contrast,
the fact that the administrative procedures for the grant
of the residence permit evidencing the right have not
been complied with may not lead to a penalty such as
refusal to grant the right of residence or removal from
the territory, which would effectively deny the actual
right of residence conferred and guaranteed by the Treaty.
The notification of an order to leave the territory may be
based not on exclusively administrative grounds, but on
facts leading to the conclusion that the person concerned
does not fulfil the conditions set for his right of residence
by one of the relevant directives.

(1) OJ 1990 L 180, p. 26.
(2) OJ English Special Edition 1968 (II), p. 485.
(3) OJ 1973 L 172, p. 14.
(4) OJ 1993 L 317, p. 59.
(5) OJ 1990 L 180, p. 28.

ple, the ordering of a specific inspection as to fitness
for human consumption or a restriction to certain
distribution channels?

2. Does the concept of ‘fair marketable quality’ in Article 13
of Commission Regulation (EEC) No 3665/87 of 27 Nov-
ember 1987 require that the product to be exported be
of average quality, and does it therefore disqualify from
the grant of an export refund a product of inferior quality,
which, however, usually appears under the description of
the object of trade given in the refund application? Is that
also the case where the inferior quality has in no way
affected the completion of the commercial transaction?

(1) OJ L 351, p. 1.

Action brought on 2 October 2003 by the Commission
of the European Communities against Ireland

(Case C-413/03)

(2003/C 275/58)

Reference for a preliminary ruling by the Bundesfinanzh-
of by order of that Court of 15 July 2003 in the
proceedings between SEPA Société d’Exportation de
Produits Agricoles S.A. and Hauptzollamt Hamburg-Jonas

An action against Ireland was brought before the Court of
Justice of the European Communities on 2 October 2003 by
the Commission of the European Communities, represented
by Mr Xavier Lewis, acting as agent, with an address for service
in Luxembourg.

(Case C-409/03)

(2003/C 275/57)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundesfinanzhof
(Federal Finance Court) of 15 July 2003, received at the Court
Registry on 1 October 2003, for a preliminary ruling in the
proceedings between SEPA Société d’Exportation de Produits
Agricoles S.A. and Hauptzollamt Hamburg-Jonas on the
following questions:

1. Does the concept of ‘fair marketable quality’ in Article 13
of Commission Regulation (EEC) No 3665/87 (1) of
27 November 1987 laying down common detailed rules
for the application of the system of export refunds on
agricultural products require that the manufacture and
distribution of the products in question be subject only
to generally valid legal conditions as they apply to any
product of that type, and does it consequently disqualify
from the grant of an export refund a product to which
special restrictions apply,
in particular as regards its
production, treatment or distribution, such as, for exam-

The Applicant claims that the Court should:

1)

declare that by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Directive 2001/18/EC of the European Parliament and of
the Council of 12 March 2001 on the deliberate release
into the environment of genetically modified organisms
and repealing Council Directive 90/220/EEC (1), or by
failing to notify such provisions to the Commission,
Ireland has failed to fulfil its obligations under Article 34
of this Directive.

2)

order Ireland to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed
expired on 17 October 2002.

(1) OJ L 106, 17.4.2001, p. 1.