Case C-492/03: Action brought on 20 November 2003 (fax on 13 November 2003) by the Republic of Austria against the Commission of the European Communities
Date: 2004-01-24
Institutions: Court of Justice
Subjects: European Commission, Upper Austria, action for annulment (EU), derogation from EU law, environmental protection, genetically modified organism, precautionary principle

C 21/20

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Official Journal of the European Union

24.1.2004

— Order the kingdom of Spain to pay the costs.

Action brought on 19 November 2003 by Commission of
the European Communities against Kingdom of Spain

Pleas in law and main arguments

The pleas in law and main arguments are the same as in Case
C-485/03.

(Case C-490/03)

(2004/C 21/38)

Action brought on 19 November 2003 by Commission of
the European Communities against Kingdom of Spain

(Case C-489/03)

(2004/C 21/37)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 19 No-
vember 2003 by Commission of the European Communities,
represented by José Luis Buendía Sierra of its Legal Service,
acting as Agent, with an address for service in Luxembourg.

The applicant claims that the Court should:

— declare that, by failing to adopt within the prescribed
period all
the measures necessary to comply with
the Commission Decision of
Articles 2 and 3 of
11.7.2001 relating to a State aid scheme applied by
Spain to a number of recently created undertakings in
Guipúzcoa (notified under No C(2001)1761) in the form
of a tax credit of 45% of the investments made, or, in any
event, by failing to notify the Commission of such
provisions in accordance with Article 4, the Kingdom of
Spain has failed to fulfil
its obligations under that
decision;

— Order the kingdom of Spain to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are the same as in Case
C-485/03.

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 19 No-
vember 2003 by Commission of the European Communities,
represented by José Luis Buendía Sierra of its Legal Service,
acting as Agent, with an address for service in Luxembourg.

The applicant claims that the Court should:

— declare that, by failing to adopt within the prescribed
the measures necessary to comply with
period all
the Commission Decision of
Articles 2 and 3 of
11.7.2001 relating to a State aid scheme applied by Spain
to certain recently established firms in Vizcaya (notified
under No C(2001)1763, or, in any event, by failing to
notify the Commission of such provisions in accordance
with Article 4, the Kingdom of Spain has failed to fulfil
its obligations under that decision;

— Order the kingdom of Spain to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are the same as in Case
C-485/03.

Action brought on 20 November 2003 (fax on 13 Novem-
ber 2003) by the Republic of Austria against the Com-
mission of the European Communities

(Case C-492/03)

(2004/C 21/39)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 20 November 2003 (fax on 13 November
2003) by the Republic of Austria, represented by Dr Harald
Dossi, with an address for service in Luxembourg.

24.1.2004

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Official Journal of the European Union

C 21/21

The Republic of Austria claims that the Court should:

— Protection of the environment

1.

annul the Commission’s decision of 2 September 2003
(C(2003) 3117 Final), rejecting the national provisions
on banning the use of genetically modified organisms
(GMOs) in Upper Austria notified by the Republic of
Austria pursuant to Article 95(5) EC (1);

2.

order the Commission to pay the costs.

Pleas in law and main arguments

— Infringement of essential procedural requirements

— Failure to observe the right to participate in the

procedure and the right to a fair hearing

There was a failure to comply with the right to a fair
hearing, as the Republic of Austria was not given
the opportunity to submit observations on the
content of or the conclusion reached in the Com-
mission’s decision before it was adopted. Matters
relevant to a hearing in this case included not only
any observations submitted by Member States, but
also the only crucial evidence referred to in the
procedure, namely the opinion of the European
Food Safety Authority (EFSA) of 4 July 2003. Had it
been possible to refute the opinion of the EFSA, a
different result might have been reached. As this
could not occur in the absence of prior notice of
the opinion, the decision-making process did not
comply with constitutional principles relating to
proper procedure and there was accordingly a
breach of essential procedural requirements.

— Failure to observe the obligation to state reasons

There are serious deficiencies in the reasoning
contained in the decision. In it, the Commission
referred to and described the content and aims of the
Austrian draft Law (the Upper Austria Gentechnisch-
Verbotgesetz (Law prohibiting genetic engineering)
2002; ‘the Oö. GTVG 2002’) in general terms only.
In particular, the Commission gave only peripheral
consideration to the fact that the Law is to be
applicable for only three years from its adoption. In
view of the fact that the statement of reasons for a
legal measure must deal with arguments and con-
cerns of the Member States which are clearly particu-
larly important to them, the Commission’s approach
constitutes a gross infringement of the duty to state
reasons.

— Infringement of
implementing it

the Treaty or a requirement when

In the opinion of the Republic of Austria, the draft Oö.
GTVG 2002 fulfils the requirements of Article 95(5) EC.

The Oö. GTVG 2002 is a measure to protect and
preserve the natural environment, which includes
the field of biodiversity in its widest sense. The
notified measure relates not only to the coexistence
of conventional agricultural crop production and
the farming of genetically modified crops, but also
protects flora and fauna as a whole from impairment
or elimination by GMOs. The Commission was
under a duty to answer the question of whether the
Oö. GTVG 2002 was necessary for the protection
of the environment or the working environment. It
failed to do so, as the issue of the compatibility
(coexistence) of organic and conventional GMO-free
crop production and naturally growing crops with
GMO farming on a wide scale was left out of its
assessement. The issue of coexistence was as a result
impermissibly excluded from the Community law
definition of the environment. This distinction con-
stitutes an approach that cannot be understood, as
the concept of the environment is neither materially
nor geographically restricted by the EC Treaty.
In procedures under Directive 2001/18/EC (2), the
notion of coexistence must plainly be taken into
account in the context of the environmental assess-
ment that is to be carried out. It is not possible to
separate the concepts of ‘environment’ and ‘coexist-
ence’, as the Commission does, and their separation
is arbitrary. Contrary to the Commission’s view, the
concerns raised by the Republic of Austria regarding
the question of coexistence of genetically modified
and unmodified cultivation clearly relate to specific
environmental protection problems for the purposes
of Article 95(5) EC.

— New scientific evidence

In reliance on the opinion of the EFSA, the Com-
mission formed the view that the Müller Report, on
which the Oö. GTVG 2002 is based, contains data
which were for a large part available before the
adoption of Directive 2001/18/EC. The Republic of
Austria does not share this view. The decisive point
is the finding in the Müller Report that organic and
conventional GMO-free crop production in practice
cannot possibly coexist with GMO farming on a
wide scale and therefore appropriate environmental
protection cannot be achieved. The study,
like
any serious work, admittedly contains a grounded
scientific assessment of data that were partly already

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Official Journal of the European Union

24.1.2004

available, but this has no effect on its own value.
The decisive point is that the study itself contains
new scientific evidence and conclusions and clearly
shows that a current risk of negative consequences
for the environment, fauna and flora cannot be ruled
out.

— Problem specific to the Member State concerned

the farming system in Upper
The structure of
Austria, demonstrably consisting of small farms,
coupled with the constant increase in the proportion
of organically managed areas and the number of
organically run farming enterprises, means that the
character of this region of the Community is unique.

that

In the opinion of the Republic of Austria, the
additional requirement laid down by Article 95(5)
the problem which is specific to the
EC,
Member State should have arisen only after the
harmonisation measure has been adopted, has been
fulfilled. The fact that concerns had arisen earlier in
that regard does not preclude this. The decisive
point is that the full extent of the problem became
apparent only after the adoption of the harmonis-
ation measure. Only on publication of the Müller
study on 28 April 2002 was it possible to confirm
the actual scope of the problem.

— Proportionality

The Oö. GTVG 2002 should be seen as a national
provision which is necessary for the protection of
the environment and which, having regard to the
fact that it is applicable for a limited period of three
years, also falls to be classified as proportionate.

— The precautionary principle and the principle that

preventive action should be taken

The Oö. GTVG 2002 is a precautionary and preven-
tive measure within the meaning of Article 174(2)
EC. This provision states that Community policy on
is to aim at a high level of
the environment
protection taking into account
the diversity of
situations in the various regions of the Community
and is to be based inter alia on the precautionary
principle and the principle that preventive action
should be taken. The distinction drawn by the
the
Community legislature makes sense only if
terms ‘precaution’ and ‘prevention’ are each given a
separate meaning. ‘Precaution’ accordingly begins at
a point in time at which a threat to the environment
is not sufficiently precise for ‘preventive action’ to
be necessary in relation to it. The Oö. GTVG 2002
is clearly aimed at the avoidance of risks and is
therefore justified by the precautionary principle.

(1) OJ L 230 of 16.9.2003, p. 34.
(2) OJ L 106 of 17.4.2001, p. 1.

Reference for a preliminary ruling by the Cour d’appel de
Bordeaux, chambre de l’instruction, by order of that
Court of 4 November 2003 in the case of Ministère public
against André Rochus Hiebeler

(Case C-493/03)

(2004/C 21/40)

Reference has been made to the Court of Justice of the
European Communities by order of the Cour d’appel de
Bordeaux, chambre de l’instruction, (Examining Chamber of
the Bordeaux Court of Appeal) of 4 November 2003, received
at the Court Registry on 24 November 2003, for a preliminary
ruling in the case of Ministère public against André Rochus
Hiebeler on the following questions:

— Do the transportation and sale of the same quantity of
drugs constitute different acts depending on whether
these acts are committed in only one Member State or
from one Member State to another?

— Does the importation into a Member State of the same
quantity of drugs and its transportation shortly thereafter
to another Member State constitute a single act or
separate acts?

— Does Article 54 of the Schengen Convention entitle a
Contracting State to which a request for extradition is
addressed to accept a plea of ne bis in idem where the
requirements for the application of that principle are met,
but where the final conviction on the basis of which it
is sought to have the prosecution discontinued was
pronounced not in that State but in another Contracting
State?

— Does the prohibition under Article 54 of the Schengen
Convention preclude the enforcement of a judgment
imposing a penalty delivered in a Member State before
the coming into force of that Convention?

— Does the offence of being a party to dealing in more than
minimal quantities of drugs, laid down by and punishable
under Paragraphs 30.I.4, 29.I(1), III(2)2 and 29.I.4, Para-
graph 3-I, 2-I, 1-I combined with Annex III of Para-
graph 1-II of the German Law on drugs, in the version of
27 January 1987, and Paragraphs 25-II, 52 and 53 of the
Federal Criminal Code, protect the same legal interests as,
or different legal interests from, those protected by the
offence of the importation, unlawful possession and sale
of more than minimal and partially substantial quantities
of drugs, laid down by and punishable under Articles 71,
72, 74(I)2, 74(II) and 75 of Italian Law No 685/75 of
22 December 1975 and Articles 81, 56 and 110 of the
Italian Criminal Code?