Case C-504/03: Action brought on 27 November 2003 by the Commission of the European Communities against the French Republic
Date: 2004-01-24
Institutions: Court of Justice
Subjects: European Commission, France, State aid, action for failure to fulfil an obligation, computer systems

24.1.2004

EN

Official Journal of the European Union

C 21/27

The applicant claims that the Court should:

1. Declare that (i) by rejecting a visa application for the
entry into Spanish territory of two persons, both nationals
of third countries (or of non-member countries), who are
members of a family of citizens of the European Union,
on the sole ground that they are included in the national
reporting list in the Schengen Information System of
persons not to be permitted entry (at the request of a
Member State) and, (ii) for failing to give adequate reasons
for the refusal of the visa applications and entry, the
Kingdom of Spain has failed to fulfil its obligations under
Articles 1, 2, 3 and 6 of Directive 64/221/EEC of
25 February 1964 (1) on the co ordination of special
measures concerning the movement and residence of
foreign nationals which are justified on grounds of public
policy, public security or public health;

they are covered by Community law,

The Spanish authorities have failed to fulfil the obligations
deriving from Directive 64/221/EEC since, having established
that the persons concerned are included in the SIS reporting
list and that
they
concluded automatically, and without carrying out an individ-
ual assessment, that entry into Spanish territory and the visa
application had to be refused, and failed to carry out the
necessary checks to ascertain whether that inclusion in the
reporting list was well-founded as regards the requirements of
Community law.

(1) OJ, English Special Edition Series I, Chapter 1963-1964, p. 117.

2. Order the Kingdom of Spain to pay the costs.

Action brought on 27 November 2003 by the Com-
mission of the European Communities against the French
Republic

Pleas in law and main arguments

(Case C-504/03)

(2004/C 21/50)

the

constitutes

64/221/EEC

Directive
Community
implementing legislation on the movement and residence (for
persons covered by Community law or citizens of a non-
member country who are members of a family of Community
citizens); it precludes the inclusion of those persons in the
national reporting list of citizens not to be permitted entry
pursuant to Article 96 of the Convention implementing the
Schengen Agreement, since the result of inclusion is as a rule
that all the Member States which apply the Schengen acquis
must refuse the person concerned entry to their territory.

Access by a citizen of the Union or of a third country who is a
family member of a Community citizen to the territory of a
Member State may be refused entry on grounds of public
policy only when the person concerned represents a present,
genuine and sufficiently serious threat, affecting a fundamental
interest of society. Facts constituting a threat to public policy
within the usual Community law meaning (Directive 64/221/
EEC) cannot be treated in the same way as facts constituting
such a threat within the meaning of Article 96(2) of the
Convention implementing the Schengen Agreement. In the
present case, the inclusion in the Schengen Information System
(SIS) at the request of Germany cannot constitute on its own a
sufficient indication of a genuine and serious threat to public
policy, given that on one hand the grounds for that inclusion
are not known, and on the other hand the parties concerned
legally reside in the territory of a Member State, which
constitutes evidence that there is no threat of that kind.

An action against the French Republic was brought before the
Court of Justice of the European Communities on 27 Novem-
ber 2003 by the Commission of the European Communities,
represented by J.-P. Keppenne and V. Di Bucci, acting as
Agents, with an address for service in Luxembourg.

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

1.

declare that, by failing to bring into force within the
period prescribed for that purpose the measures necessary
to ensure reimbursement by Bull of the cash advance,
in accordance with Commission
including interest,
Decision 2003/599/EC concerning the cash advance
granted by France to Bull
(notified under document
number C(2002) 4366) (1), the French Republic has failed
to fulfil its obligations under the fourth paragraph of
Article 249 EC and Articles 2 and 3 of the decision;

2.

order the French Republic to pay the costs.

Pleas in law and main arguments

The French Republic has not taken any measures to comply
with the decision of 13 November 2002 and has not informed
the Commission in due time of any proposals for alternative
measures.

C 21/28

EN

Official Journal of the European Union

24.1.2004

The French Republic had confirmed its willingness to comply
with the decision of 13 November 2002. Nevertheless it failed
to submit evidence of the reimbursement by Bull, no later than
17 June 2003, of the cash advance of EUR 450 million,
including interest. The French Republic did not at any time
plead that it found it absolutely impossible to comply with the
decision. It took no action in relation to Bull with a view to
obtaining reimbursement of the aid. Moreover, compliance
with the decision did not present any particular difficulty,
since reimbursement had been agreed upon from the outset
between the Commission and the French Republic on the one
hand, and between the French Republic and Bull on the other
hand.

Pleas in law and main arguments

According to Article 7(6) and Article 19 of Directive 80/778/
EEC, read in conjunction with Annex I to that directive, from
15 July 1985 all water intended for human consumption in
France must have a maximum nitrate concentration of less
than or equal to 50 mg/l.

However, it appears from official publications that in 1988,
13 % of the total population of the region of Brittany were
supplied with water which had, temporarily or permanently, a
nitrate concentration of over 50 mg/l.

In addition the French Republic has allowed the period
prescribed to expire without bringing an action for annulment
of the decision, which must therefore be considered final
against it.

On expiry of the period laid down by the Commission in its
reasoned opinion, the French authorities admitted that that
percentage, although it had decreased, was still 2,6 % in 2002.

(1) OJ 2003 L 209, p. 1.

(1) OJ 1980 L 229, p. 11.

Action brought on 28 November 2003 by the Com-
mission of the European Communities against the French
Republic

Action brought on 4 December 2003 by the Commission
of the European Communities against the Federal Repub-
lic of Germany

(Case C-505/03)

(2004/C 21/51)

(Case C-510/03)

(2004/C 21/52)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 28 Novem-
ber 2003 by the Commission of the European Communities,
represented by G. Valero Jordana and F. Simonetti, acting as
Agents, with an address for service in Luxembourg.

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 4 December 2003 by the Commission of the European
Communities, represented by J.C. Schieferer, with an address
for service in Luxembourg.

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

1.

declare that, by failing to comply with the requirements
of the directive in relation to the nitrate content of
drinking water in Brittany, the French Republic has failed
to fulfil its obligations under Article 7(6) and Annex I of
Council Directive 80/778/EEC of 15 July 1980, as
amended, relating to the quality of water intended for
human consumption (1);

The applicant claims that the Court should:

1.

declare that, by adopting and retaining provisions
impeding the placing on the market and putting into
service of appliances burning gaseous fuel which satisfy
the requirements of Council Directive 90/396/EEC of
29 June 1990 on the approximation of the laws of the
Member States relating to appliances burning gaseous
fuels (1), in particular gas-fuelled water heaters, the Federal
Republic of Germany has failed to fulfil its obligations
under Article 4 of Directive 90/396/EEC;

2.

order the French Republic to pay the costs.

2.

order the Federal Republic of Germany to pay the costs.