Judgment of the Court of 25 November 2003 in Case C-278/01: Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Judgment of the Court establishing such failure — Non-compliance — Article 228 EC — Financial penalties — Penalty payment — Quality of bathing water — Directive 76/160/EEC)
Date: 2004-01-10
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, bathing water, environmental standard, quality standard

10.1.2004

EN

Official Journal of the European Union

C 7/7

3.

the product that it designates is accorded protection in the
importing Member State, whether or not there is any risk of
consumers being misled, and the import of a product lawfully
marketed in another Member State may be prevented.

The first paragraph of Article 307 EC is to be interpreted as
permitting a court of a Member State, subject to the findings to
be made by that court having regard inter alia to the criteria set
out in this judgment, to apply the provisions of bilateral
agreements such as those at issue in the main proceedings,
concluded between that State and a non-member country and
according protection to a name from the non-member country,
even where those provisions prove to be contrary to the EC
Treaty rules, on the ground that they concern an obligation
resulting from agreements concluded before the date of the
accession of the Member State concerned to the European
Union. Pending the success of one of the methods referred to in
the second paragraph of Article 307 EC in eliminating any
incompatibilities between an agreement predating that accession
and the Treaty, the first paragraph of that article permits that
State to continue to apply such an agreement in so far as it
contains obligations which remain binding on that State under
international law.

(1) OJ C 245 of 1.9.2001.

ruling in the criminal proceedings before that court against
Piergiorgio Gambelli and Others on the interpretation of
Articles 43 EC and 49 EC, the Court, composed of: V. Skouris,
President, P.
Jann, C.W.A. Timmermans and J.N. Cunha
Rodrigues (Presidents of Chambers), D.A.O. Edward (Rappor-
teur), R. Schintgen, F. Macken, N. Colneric and S. von Bahr,
Judges; S. Alber, Advocate General; H.A. Rühl, Principal
Administrator, for the Registrar, has given a judgment on
6 November 2003, in which it has ruled:

National legislation which prohibits on pain of criminal penalties the
pursuit of the activities of collecting, taking, booking and forwarding
offers of bets, in particular bets on sporting events, without a licence
or authorisation from the Member State concerned constitutes a
restriction on the freedom of establishment and the freedom to provide
services provided for in Articles 43 and 49 EC respectively. It is for
the national court to determine whether such legislation, taking
account of the detailed rules for its application, actually serves the
aims which might justify it, and whether the restrictions it imposes
are disproportionate in the light of those objectives.

(1) OJ C 245 of 1.9.2001.

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

of 6 November 2003

of 25 November 2003

in Case C-243/01 (Reference for a preliminary ruling from
the Tribunale di Ascoli Piceno): Piergiorgio Gambelli and
Others (1)

in Case C-278/01: Commission of the European Communi-
ties v Kingdom of Spain (1)

(Right of establishment — Freedom to provide services —
Collection of bets on sporting events in one Member State
and transmission by internet to another Member State —
Prohibition enforced by criminal penalties — Legislation in
a Member State which reserves the right to collect bets to
certain bodies)

(2004/C 7/10)

(Language of the case: Italian)

(Failure of a Member State to fulfil obligations — Judgment
of the Court establishing such failure — Non-compliance —
Article 228 EC — Financial penalties — Penalty payment
— Quality of bathing water — Directive 76/160/EEC)

(2004/C 7/11)

(Language of the case: Spanish)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-243/01: Reference to the Court under Article 234 EC
by the Tribunale di Ascoli Piceno (Italy) for a preliminary

In Case C-278/01, Commission of the European Communities
(Agent: G. Valero Jordana) v Kingdom of Spain (Agent: S. Ortiz
Vaamonde): Application, first, for a declaration that, by not

C 7/8

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Official Journal of the European Union

10.1.2004

taking the necessary measures to ensure that the quality of
inshore bathing water in Spanish territory conforms to the
limit values set in accordance with Article 3 of Council
Directive 76/160/EEC of 8 December 1975 concerning the
quality of bathing water (OJ 1976 L 31, p. 1), notwithstanding
its obligations under Article 4 of that directive, the Kingdom
of Spain has not complied with the judgment of the Court of
Justice in Case C-92/96 Commission v Spain [1998] ECR I-
505, and has accordingly failed to fulfil its obligations under
Article 228 EC and, second, for an order that the Kingdom of
Spain be required to pay to the Commission, into the account
‘European Community own resources’, a penalty payment of
EUR 45 600 per day of delay in adopting the measures
necessary to comply with the said judgment in Commission v
Spain, from the date on which judgment is delivered in this
case until the date on which the said judgment in Commission
v Spain is complied with, the Court, composed of: V. Skouris,
President, C.W.A. Timmermans, C. Gulmann and J.N. Cunha
Chambers),
Rodrigues
D.A.O. Edward, A. La Pergola, J.-P. Puissochet, R. Schintgen,
F. Macken, N. Colneric and S. von Bahr, Judges; J. Mischo,
Advocate General; L. Hewlett, Principal Administrator, for the
Registrar, has given a judgment on 25 November 2003, in
which it:

(Rapporteur)

(Presidents

of

JUDGMENT OF THE COURT

(Fifth Chamber)

of 6 November 2003

in Case C-293/00: Kingdom of the Netherlands v Com-
mission of the European Communities (1)

(Annulment of Commission Decision 2000/362/EC of
25 May 2000 on the total amount of Community aid for the
eradication of classical swine fever in the Netherlands in
1997)

(2004/C 7/12)

(Language of the case: Dutch)

1. Declares that, by not taking the measures necessary to ensure
that the quality of inshore bathing water in Spanish territory
conforms to the limit values set in accordance with Article 3 of
Council Directive 76/160/EEC of 8 December 1975 concern-
ing the quality of bathing water, notwithstanding its obligations
under Article 4 of that directive, the Kingdom of Spain has not
taken all the measures necessary to comply with the Court’s
judgment of 12 February 1998 in Case C-92/96 Commission
v Spain and has accordingly failed to fulfil its obligations under
Article 228 EC.

2. Orders the Kingdom of Spain to pay to the Commission of the
European Communities, into the account ‘European Community
own resources’, a penalty payment of EUR 624 150 per year
and per 1 % of bathing areas in Spanish inshore waters which
have been found not to conform to the limit values laid down
under Directive 76/160 for the year in question, as from the
time when the quality of bathing water achieved in the first
bathing season following delivery of this judgment is ascertained
until the year in which the judgment in Commission v Spain is
fully complied with.

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-293/00, Kingdom of the Netherlands (Agents:
A. Fierstra, C. Wissels and J. G. M. van Bakel) v Commission of
the European Communities (Agent: T. van Rijn): Application
for annulment of Commission Decision 2000/362/EC of
25 May 2000 on the total amount of Community aid for the
eradication of classical swine fever in the Netherlands in 1997
(OJ 2000 L 129, p. 33), in so far as the financial aid granted to
the Netherlands by the Community for the eradication of
classical swine fever in 1997 is reduced by 25 % of the
amounts paid to farmers by way of compensation, the Court
(Fifth Chamber), composed of: C.W.A. Timmermans, President
the Fifth
of
Chamber, D.A.O. Edward (Rapporteur) and S. von Bahr,
Judges; C. Stix-Hackl, Advocate General; M.-F. Contet, Principal
Administrator, for the Registrar, has given a judgment on
6 November 2003, in which it:

the Fourth Chamber, acting as President of

3. Orders the Kingdom of Spain to pay the costs.

1. Dismisses the application.

(1) OJ C 245 of 1.9.2001.

2. Orders the Kingdom of the Netherlands to pay the costs.

(1) OJ C 335 of 25.11.2000.