Case C-6/04: Action brought on 9 January 2004 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland
Date: 2004-03-06
Institutions: Court of Justice
Subjects: European Commission, Northern Ireland, United Kingdom, action for failure to fulfil an obligation, environmental protection, town and country planning

C 59/16

EN

Official Journal of the European Union

6.3.2004

Action brought on 9 January 2004 by the Commission of
the European Communities against the United Kingdom
of Great Britain and Northern Ireland

mission considers that the United Kingdom legislation does
not properly transpose these provisions in three specific
regards. National legislation is indequate with regard to water
abstraction plans and projects, land use plans and, in respect
of Gibraltar, the review of existing planning rights.

(Case C-6/04)

(2004/C 59/26)

An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of
the European Communities on 9 January 2004 by the
Commission of the European Communities, represented by
L. Flynn and M. van Beek, acting as agents, with an address for
service in Luxembourg.

The Applicant claims that the Court should:

Articles 11 and 14(2)

Article 11 of the Directive imposes a requirement on Member
States to undertake surveillance of the conservation status of
priority habitats or priority species. The United Kingdom has
not specifically transposed this obligation. Until this provision
is transposed, and this duty is clearly assigned to the competent
authorities, the Commission is unable to establish whether
such surveillance is carried out. The same point arises in
Article 14(2) of the Directive, which requires that where
measures are deemed necessary, they shall include continu-
ation of the surveillance provided for in Article 11 of the
Directive.

— declare that, by failing to correctly transpose the require-
ments of Council Directive 92/43/EEC (1) on the conser-
vation of natural habitats and of wild fauna and flora, the
United Kingdom of Great Britain and Northern Ireland
has failed to fulfil its obligations under that directive; and

Article 12(1)(d)

— order the United Kingdom to pay the costs.

Pleas in law and main arguments

Article 6(2)

The transposing legislation for Great Britain and for Northern
Ireland fails to provide for the obligation to take requisite
measures to establish a system of strict protection prohibiting
the deterioration of breeding sites or resting places as required
by Article 12(1)(d) of the Directive.

Furthermore, with regard to Gibraltar, the enforcement powers
foreseen in the NPO 1991 are inadequate to ensure the
protection required by Article 12(1) of the Directive.

the United Kingdom has

Whilst
adopted provisions
implementing this provision with regard to controlling poten-
tially disturbing operations, there are not provisions for all
parts of the United Kingdom which enable the competent
authority to take steps to avoid the deterioration of a site. The
Commission considers that the United Kingdom has therefore
failed to fully implement Article 6(2) of the Directive to protect
a designated site from deterioration due to neglect or inactivity
rather than a potentially damaging operation.

Article 12(4)

Article 12(4) requires the monitoring of incidental capture and
killing. The United Kingdom’s transposing measures contain
no provisions requiring the establishment of such a monitoring
system. In the absence of further information, the Commission
is unable to establish whether such monitoring is carried out.

Article 6(3) and 6(4)

Article 13(1)

Article 6(3) of the Directive concerns plans or projects likely
to have a significant effect on a site, for which a two-fold test
is introduced. Such plans or projects must be assessed for
adverse effects on the integrity of the site following public
consultation. Article 6(4)
compensatory
measures to be taken under certain circumstances. The Com-

then requires

Article 13(1) of the Directive requires the prohibition of the
keeping, transport and sales or exchange and offering for sale
or exchange of specimens of plant species taken from the wild,
except
for those taken legally before this Directive was
implemented. Once again, the Commission considers that the
national measures transposing this prohibition fail to comply
with the temporal limitation on that defence.

6.3.2004

EN

Official Journal of the European Union

C 59/17

Article 15

Article 15 of the Directive, which requires the introduction of
a general prohibition on indiscriminate capture and killing has
been implemented by regulation 41 of the C(NH)R 1994,
regulation 36(2) of the C(NH)R(NI)1995 and section 17V(2)
of the NPO 1991. These provisions make it an offence to use
any of the means of capture and killing listed in Annex VI(a)
and Annex VI(b) of the Directive. The Commission considers
that this transposition method fails to incorporate a general
prohibition as is required by Article 15.

Article 16

Article 16(1) of the Directive permits derogations from the
prohibitions under Articles 12, 13, 14 and 15(a) and (b) of the
Directive in certain circumstances. Such derogations are subject
to two pre-conditions
in the opening paragraph of
Article 16(1), namely that there is no satisfactory alternative
and that the derogation is not detrimental to the maintenance
of the populations of the species concerned at a favourable
conservation status in their natural range. The Commission
considers that
the national measures providing for these
derogations do not adequately transpose these pre-conditions.

Application of the Directive beyond territorial waters

The Commission considers that the Directive applies beyond
the territorial waters. Specifically, the United Kingdom has
failed to transpose the obligations to designate special areas of
conservation under Article 4 of the Directive and to provide
species protection under Article 12 of the Directive inasmuch
as the transposing legislation does not apply beyond the
United Kingdom’s territorial waters.

(1) of 21 May 1992 (OJ 1992 L 206, p. 7).

Reference for a preliminary ruling by the Gerechtshof
Herzogenbusch by judgment of that Court of 8 January
2004 in the case of E. Bujura against Inspecteur van de
Belastingdienst Limburg / Kantoor Buitenland, Heerlen

(Case C-8/04)

(2004/C 59/27)

Reference has been made to the Court of Justice of the
European Communities by judgment of
the Gerechtshof
Herzogenbusch (s-Hertogenbosch Regional Court of Appeal)
of 8 January 2004, received at the Court Registry on 12 January
2004,
for a preliminary ruling in the case of E. Bujura
against Inspecteur van de Belastingdienst Limburg / Kantoor
Buitenland, Heerlen on the following question:

Does a foreign taxpayer resident in a Member State, such as
Germany, who is not entitled to the benefits afforded by the
Netherlands-Germany Tax Convention because he does not
satisfy the condition, laid down in that regard, that he receive
at least 90% of his income in the Netherlands, have the right,
by virtue of EC law, to receive from the Netherlands the tax-
free allowance and tax credit for income tax in the calculation
of his income from savings and investments if a foreign
taxpayer who in resident in another Member State, in this case
Belgium, has the right to such benefits in the calculation of his
income from savings and investments by virtue of
the
Netherlands-Belgium Tax Convention (and the decision of the
State Secretary for Finance of 21 February 2002, No CPP
2001/2745, BNB 2002/164) despite the fact that he does not
receive at least 90 % of his income in the Netherlands?

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 23 December
2003 in the case of in the criminal case against
Geharo B.V.

(Case C-9/04)

(2004/C 59/28)

Reference has been made to the Court of Justice of the
the Hoge Raad
European Communities by judgment of
der Nederlanden (Supreme Court of
the Netherlands) of
23 December 2003, received at the Court Registry on 12 Janu-
ary 2004, for a preliminary ruling in the case of in the criminal
case against Geharo B.V. on the following question:

Does the second sentence of Article 1 of Directive 91/338/
EEC (1) (cadmium directive) preclude the application of the
rules in that directive regarding the cadmium content of
(finished) products and components, as set out in the Annex
thereto, to toys within the meaning of Directive 88/378/
EEC (2) (toy safety directive)?

(1) Council Directive 91/338/EEC of 18 June 1991 amending for the
10th time Directive 76/769/EEC on the approximation 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 186 of 12.07.1991,
p. 59 — Corrigendum in OJ L 253, 10.9.1991, p. 26).

(2) Council Directive 88/378/EEC of 3 May 1988 on the approxi-
mation of the laws of the Member States concerning the safety of
toys (OJ L 187 of 16.07.1988, p. 1).