Case C-104/04: Action brought on 1 March 2004 by the Commission of the European Communities against the French Republic
Date: 2004-04-17
Institutions: Court of Justice
Subjects: European Commission, France, action for failure to fulfil an obligation, competition, freedom to provide services, principle of subsidiarity, right of establishment, telecommunications, trade licence

C 94/30

EN

Official Journal of the European Union

17.4.2004

Action brought on 1 March 2004 by the Kingdom of the
the European
Netherlands against

the Commission of
Communities

as a substance or constituent for uses other than those referred
to in Directive 2000/45/EC therefore does not fall within the
scope of that directive.

(Case C-103/04)

(2004/C 94/67)

(1) OJ 2004 L 1, p. 20.
(2) OJ 2002 L 177, p. 21.

An action against the Commission of the European Commu-
nities was brought before the Court of Justice of the European
Communities on 1 March 2004 by the Kingdom of the Nether-
lands, represented by H.G. Sevenster and J.G.M. van Bakel,
acting as Agents.

The applicant claims that the Court should:

1. annul Decision 2004/1/EC (1) insofar as, in that decision, the
Commission takes
approval under
the view that
Article 95(6) EC is required for the maintenance of Dutch
rules on uses of short-chain chlorinated paraffins for which
no provision is made in Directive 2002/45/EC; (2)

its

2. order the Commission to pay the costs.

Pleas in law and main arguments:

The Netherlands Government takes the view that the Commis-
sion acted in breach of Article 95(4) and (6) EC, in conjunction
with Directive 2002/45/EC, by approving the maintenance of
the national measures laid down in the Chlorinated Paraffins
Decision WMS only to the extent that those measures have
been notified to it in accordance with Article 95(4) EC and
approved by it in accordance with Article 95(6) EC.

As is apparent from the wording of Article 95(4) EC, the main-
tenance of national measures is subject to approval by the
Commission only where a Member State deems it necessary to
is not required,
maintain national provisions. Such approval
however, for the maintenance of national measures that relate
to an area (or, as in the present case, uses) for which no provi-
sion is made in the relevant Community rules or that pursue a
different objective.

The Netherlands Government takes the view that,
insofar as
they relate to uses other than those provided for in Directive
2002/45/EC,
the measures for implementing the PARCOM
Decision 95/1, laid down in the Chlorinated Paraffins Decision
WMS, do not fall within the scope of that directive so that
their maintenance is not subject to approval by the Commis-
sion under Article 95(6) EC.

Directive 2002/45/EC concerns exclusively restrictions on the
marketing of SCCPs for use, in concentrations higher than 1 %,
as substances or as constituents of other substances or prepara-
tions in metalworking or for fat liquoring of leather.

Directive 2002/45/EC expressly does not deal with other uses.
Measures relating to softening agents and flame retardants are
therefore not covered by the provisions of the Directive. With
respect to those uses, the Member States are free to adopt inde-
pendent measures, which do not require to be notified to the
Commission under Article 95(4) EC. The marketing of SCCPs

Action brought on 1 March 2004 by the Commission of
the European Communities against the French Republic

(Case C-104/04)

(2004/C 94/68)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 1 March
2004 by the Commission of the European Communities, repre-
sented by J.-F. Pasquier and M. Shotter, 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 the laws, regula-
tions and administrative provisions necessary to comply
with Article 3(2) and Article 8(1) of Directive 97/13/EC of
the European Parliament and of the Council of 10 April
1997 in conjunction with the Annex thereto (1), the French
Republic has failed to fulfil its obligations under that direc-
tive;

2. order the French Republic to pay the costs.

Pleas in law and main arguments:

The amendments made to the French Code des postes et télé-
communications (Post and Telecommunications Code) do not
put an end to the ground for complaint relating to the incon-
sistency of the obligatory contribution to research and develop-
ment with the requirements of the directive. The Code requires
the operators concerned to contribute to telecommunications
research and development in the European Community in the
sum of a minimum annual amount equal to 5 % of their invest-
ment. However that obligation is not included in the exhaustive
list of the conditions which may be attached to licences and
does not fall within any of the categories of conditions set out
in the Annex to the directive.

(1) Directive 97/13/EC of the European Parliament and of the
Council of 10 April 1997 on a common framework for
general authorisations and individual licences in the field of
telecommunications services (OJ L 117 of 7.5.1997, p. 15).