Case C-26/04: Action brought on 27 January 2004 by the Commission of the European Communities against the Kingdom of Spain
Date: 2004-03-20
Institutions: Court of Justice
Subjects: European Commission, Galicia, Spain, action for failure to fulfil an obligation, bathing water, quality standard, shellfish farming, water analysis, water pollution

20.3.2004

EN

Official Journal of the European Union

C 71/11

2.

3.

4.

5.

Is Article 32 of Protocol 4 mentioned above to be
construed as meaning that the customs authorities of the
importing Member State are required to take into account
the decisions of the courts of the exporting State over-
turning the outcome of investigations ordered and carried
out by the Hungarian authorities after the export oper-
ation, regard being had to the fact that

(a)

the authorities of the importing State were duly
informed both of the fact that proceedings were
pending before the Hungarian courts and of the
outcome of the relevant procedures and

(b)

those authorities never asked for any investigation
to be carried out;

If the answer to the above questions is affirmative are the
abovementioned provisions of Community law to be
construed as not permitting the adoption of administrat-
ive acts imposing additional duties charges and taxes
issued by the national authorities of the importing State
after notification by the Hungarian authorities of the
outcome of the investigation conducted by them but
before publication of the court decisions overturning the
results of the investigation for the purpose of elucidating
the due result of the prohibition of the imposition of
duties by the association agreement between the EU and
Hungary, in light also of the fact finally that the EUR.1
certificates issued were correct;

In that connection are the above questions affected by
the fact
that neither the Greek nor the Hungarian
authorities sought convocation of the association com-
mittee mentioned in Article 33 of Protocol 4 for the
purpose of reaching a determination in that connection,
a situation which demonstrates that neither of the two
authorities considered that adoption of the decisions of
the Hungarian courts constituted a dispute between them
which ought to have been brought before that committee
for a determination?

In the alternative, if the answer to the foregoing questions
is in the negative, if therefore the Greek customs auth-
orities did not infringe the abovementioned provisions of
Community law by the imposition of additional duty,
VAT and a penalty is it then possible to take the view that
the ex post determination of duties as against the importer
is not permitted under Article 220(2) of the Common
customs code on the ground of error by the customs
authorities of either the importing or exporting State,
regard being had in particular to the fact that the customs
authorities of the exporting State had available to then all
the factual elements in connection with the manufacture
of the vehicles intended for export as the basis for issue
of the EUR.1 certificate, with the result that the authorities
of the importing State might be in a position to ascertain
ex officio the duty lawfully payable?

Reference for a preliminary ruling from the Dioikitiko
Protodikeio Athinon by order of 30 September 2003 in
the case of SPHAKIANAKIS AEBE v Greek State

(Case C-24/04)

(2004/C 71/16)

By order of 30 September 2003, which was received at the
registry of the Court of Justice of the European Communities
on 26 January 2004, the Dioikitiko Protodikeio Athinon seeks
from the Court, in the context of the dispute pending before
it between SPHAKIANAKIS AEBE and the Greek State, a
preliminary ruling on the following questions:

The questions in the present case are identical to the questions
in Case C-23/04.

Action brought on 27 January 2004 by the Commission
of the European Communities against the Kingdom of
Spain

(Case C-26/04)

(2004/C 71/17)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 27 Janu-
ary 2004 by the Commission of the European Communities,
represented by Gregorio Valero Jordana, of the Commission’s
Legal Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

— declare that, by failing to officially designate the beaches
‘A Videira’, ‘Niño de Corvo’ and ‘Canabal’ in Moaña, Ría
de Vigo, Comunidad Autónoma de Galicia, the Kingdom
of Spain has failed to fulfil
its obligations under
Article 4(1) of Council Directive 76/160/EEC (1) of
8 December 1975 concerning the quality of bathing
water;

— declare that, by failing to adopt a pollution-reduction
programme for the Ría de Vigo, the Kingdom of Spain
its obligations under Article 5 of
has failed to fulfil
Council Directive 79/923/EEC (2) of 30 October 1979 on
the quality required of shellfish waters;

— order the Kingdom of Spain to pay the costs.

C 71/12

EN

Official Journal of the European Union

20.3.2004

Pleas in law and main arguments

The Spanish authorities have not officially designated as
bathing areas, the beaches Viela/A Videira, Niño do Corvo and
Canabal in the municipality of Moaña (Pontevedra), in spite of
the frequent presence of bathers on those beaches. In the
absence of a ban on bathing, the presence of bathers requires
the designation of those beaches as bathing waters, for the
In the absence of such a
purpose of Directive 76/160.
designation, those three beaches have not been subject to the
surveillance required by the Directive.

The waters of the Ría de Vigo do not conform to the guideline
values, laid down by Directive 79/923, for faecal coliforms, in
spite of the fact that nearly all of those waters have been
designated by the Spanish authorities as shellfish waters.
Accordingly, Article 5 of that directive requires the establish-
ment of a programme to reduce pollution in order to ensure
that the designated waters conform to the values fixed in the
Annex to Directive 79/923. However, the pollution-reduction
programme for the Ría de Vigo has not been notified to the
Commission.

(1) OJ 1976 L 31, p. 1; Spanish Special Edition 15/01, p. 133.
(2) OJ 1979 L 281, p. 47; Spanish Special Edition 15/02, p. 156.

Reference for a preliminary ruling by the Tribunal De
Grand Instance de Paris (Third Chamber, Second Division)
by order of that Court of 5 December 2003 in the case of
Société TOD’S SpA (formerly named EMA Srl) and SARL
TOD’S France formerly named DEVA France against S.A.
Heyraud; Voluntary intervener: Sté Technisynthese

(Case C-28/04)

(2004/C 71/18)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunal De Grand
Instance de Paris (Paris Regional Court) of 5 December 2003,
received at the Court Registry on 28 January 2004, for a
preliminary ruling in the case of Société TOD’S SpA (formerly
named EMA Srl) and SARL TOD’S France formerly named
DEVA France against S.A. Heyraud; Voluntary intervener: Sté
Technisynthese, on the following question:

Does Article 12 of the EC Treaty, which lays down the general
principle of non-discrimination on grounds of nationality,
mean that the right of an author to claim in a Member State
the copyright protection afforded by the law of that State may
not be subject to a distinction based on the country of origin
of the work?

Action brought on 28 January 2004 by the Commission
of the European Communities against the Republic of
Austria

(Case C-29/04)

(2004/C 71/19)

the Republic of Austria was brought
An action against
before the Court of Justice of the European Communities
on 28 January 2004 by the Commission of the European
Communities, represented by Klaus Wiedner, acting as Agent,
with an address for service in Luxembourg.

The applicant claims that the Court should:

1.

declare that the Republic of Austria has failed to fulfil its
obligations under Council Directive 92/50/EEC of 18 June
1992 relating to the coordination of procedures for the
award of public service contracts (1), in that award of the
refuse disposal contract entered into by the town of
Mödling failed to comply with the procedures and
advertising rules laid down in Article 8, in conjunction
with Article 11(1) and Article 15(2), of that directive;

2.

order the Republic of Austria to pay the costs.

Pleas in law and main arguments

On 21 May 1999, the municipality of Mödling decided to use
its own vehicle to carry out its statutory duties relating to
refuse disposal. A company, AbfallGmbH, was incorporated
for this purpose. The whole of the company’s share capital
was held by one member, namely the municipality of Mödling.
The contract for disposal, under which the municipality of
Mödling transferred exclusive responsibility for the collection
and treatment of waste to AbfallGmbH, was entered into on
15 September 1999. The contract was entered into for an
unlimited period and came into force with retrospective effect
on 1 July 1999. Two weeks after the conclusion of the contract
for refuse disposal, the town council of the municipality of
Mödling decided that the municipality of Mödling, as sole
member of AbfallGmbH, should transfer 49 % of its shares to
a private undertaking.

The Republic of Austria is of the opinion that the provisions
of Directive 92/50/EEC do not apply to the award of the waste
disposal contract to AbfallGmbH, as it involved a so-called ‘in-
house’ transaction.