Case C-35/04: Action brought on 30 January 2004 by the Commission of the European Communities against the Grand Duchy of Luxembourg
Date: 2004-03-20
Institutions: Court of Justice
Subjects: European Commission, Luxembourg, action for failure to fulfil an obligation, approximation of laws, copyright

20.3.2004

EN

Official Journal of the European Union

C 71/15

Action brought on 30 January 2004 by the Commission
of the European Communities against the Grand Duchy
of Luxembourg

The Kingdom of Spain claims that the Court should:

(Case C-35/04)

(2004/C 71/24)

An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-
ties on 30 January 2004 by the Commission of the European
Communities, represented by K. Banks, acting as Agent, with
an address for service in Luxembourg.

— annul Articles 3, 4 and 6 of Council Regulation (EC)
No 1954/2003 (1) of 4 November 2003 on the manage-
ment of the fishing effort relating to certain Community
fishing areas and resources and modifying Regulation
(EEC) No 2847/93 and repealing Regulations (EC)
No 685/95 and (EC) No 2027/95, and

— order the defendant institution to pay the costs.

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

Pleas in law and main arguments

— declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Directive 2001/29/EC of the European Parliament and of
the Council of 22 May 2001 on the harmonisation of
certain aspects of copyright and related rights in the
information society (1), or,
in any event, by failing to
inform the Commission thereof, the Grand Duchy of
Luxembourg has failed to fulfil
its obligations under
Article 13 of that directive;

— order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period for transposition of the directive expired on
22 December 2002.

(1) OJ 2001 L 167, p. 10.

Action brought on 2 February 2004 by the Kingdom of
Spain against the Council of the European Communities

(Case C-36/04)

(2004/C 71/25)

Breach of the principle of non-discrimination:

— the use of the reference period laid down in Articles 3, 4
and 6 of the Regulation in question, which refers to the
period 1998 to 2002, discriminates against the Spanish
fleet on the basis of nationality, since for those years,
pursuant to provisions in the Act of Accession of the
Kingdom of Spain and the Republic of Portugal to the
European Communities, the Spanish fleet’s access was
limited to ICES areas V b, VI, VII and VIII a, b, d and e.

— the establishment of the sensitive area referred to in
Article 6 is similarly discriminatory as regards the Spanish
fleet, since the new sensitive area partly coincides with
the so-called ‘Irish box’, where restrictions apply to the
Spanish fleet in accordance with the Accession Treaty for
the Kingdom of Spain and the Republic of Portugal.

Misuse of power: The protection of the sensitive area provided
for in Article 6 should have been established by applying the
procedures laid down in Regulation (EC) No 850/1998 for the
conservation of fishery resources through technical measures
for the protection of juveniles of marine organisms, which
establishes measures linked to certain time-periods and areas
or to the use of certain more selective types of fishing gear in
order to ensure the survival of those juveniles. Instead, on the
pretext of the conservation of hake, the Regulation at issue
seeks to maintain discrimination against the Spanish fleet in
the waters around Ireland.

An action against the Council of the European Communities
was brought before the Court of Justice of the European
Communities on 2 February 2004 by the Kingdom of Spain,
represented by N. Díaz Abad, Abogado del Estado, with an
address for service in Luxembourg.

(1) OJ 2003 L 289, p. 1.