Case C-102/04: Actionbrought on 27 February 2004 by the Kingdom ofSweden against the Commission of the European Communities
Date: 2004-04-30
Institutions: Court of Justice
Subjects: Sweden, action for annulment (EU), marketing standard, plant health product, power of assessment

C 106/24

EN

Official Journal of the European Union

30.4.2004

Action brought on 26 February 2004 by the Commission
of the European Communities against the United Kingdom
of Great Britain and Northern Ireland.

A system of tacit authorisation cannot be compatible with the
requirements of the EIA Directive, which prescribes an assess-
ment procedure to precede the grant of authorisation. National
authorities are therefore required to examine individually every
request for authorisation.

(Case C-98/04)

(2004/C 106/42)

(1) OJ L 175, 05.07.1985, p. 40.
(2) OJ L 73, 14.03.1997, p. 5.

An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of the
European Communities on 26 February 2004 by the Commis-
sion of the European Communities, represented by M. Shotter
and F. Simonetti, acting as agents, with an address for service
in Luxembourg.

The Applicant claims that the Court should:

— declare that

the United Kingdom of Great Britain and
its obligations under
Northern Ireland has failed to fulfil
Articles 2(1) and 4 of Council Directive 85/337/EEC, of 27
June 1985, on the assessment of the effects of certain
public and private projects on the environment (1), as
amended by Council Directive 97/11/EC (2); and

— order the United Kingdom of Great Britain and Northern

Ireland to pay the costs.

Action brought on 27 February 2004 by the Kingdom of
Sweden against the Commission of the European Commu-
nities

(Case C-102/04)

(2004/C 106/43)

An action against the Commission of the European Commu-
nities was brought before the Court of Justice of the European
Communities on 27 February 2004 by the Kingdom of
Sweden, represented by A. Kruse, acting as Agent, with an
address for service in Sweden.

Pleas in law and main arguments:

The Kingdom of Sweden claims that the Court should:

The Commission received a complaint concerning the practice
in the United Kingdom of issuing Lawful Development Certifi-
cates (LDCs) to confirm that a particular use of land is lawful
for planning control purposes. A LDC is granted if it can be
proven that activity on the land has been continued without
enforcement action having been taken against the operator for
more than a set period of time.

The Commission considers that the regime being applied in the
United Kingdom, whereby a person may apply to a planning
authority to issue a LDC concerning a project within the
meaning of Council Directive 85/337/EEC, as amended by
Council Directive 97/11/EC (hereinafter ‘the EIA Directive’),
means that the United Kingdom has failed to ensure the correct
application of its obligations under Articles 2(1) and 4 of that
Directive. The issuing of LDCs effectively by-passes the devel-
opment consent procedure and as a result the requirements of
the EIA Directive.

— annul Commission Directive

December
amending
91/414/EEC (2) to include paraquat as an active substance,

2003

2003/112/EC (1)
Council

of
1
Directive

— order the Commission to pay the Kingdom of Sweden's

costs.

Pleas in law and main arguments

The Commission adopted Directive 2003/112/EC on 1
December 2003. By that directive, paraquat was included as an
active substance in Annex I to Council Directive 91/414/EEC
of 15 July 1991 concerning the placing of plant protection
products on the market.

The United Kingdom has not disputed that LDCs can be issued
for projects falling within the scope of the EIA Directive. This
means that projects covered by Article 4 of that Directive could
thereby escape the application of the requirements of Article
2(1) of the EIA Directive, namely that projects likely to have
significant effects on the environment are made subject to
development consent and an assessment with regard to their
effects.

By adopting the directive the Commission has disregarded Arti-
cles 6 and 174 EC, Article 5 of Council Directive 91/414/EEC
and Article 7(1) of Commission Regulation (EEC) No 3600/92
of 11 December 1992 laying down the detailed rules for the
implementation of the first stage of the programme of work
referred to in Article 8(2) of Council Directive 91/414/EEC
concerning the placing of plant protection products on the
market.

30.4.2004

EN

Official Journal of the European Union

C 106/25

In adopting the directive the Commission has clearly gone
beyond the limits of its discretionary powers in that it has
failed to apply the principle of caution when assessing and
dealing with the risk posed by paraquat both to human and to
animal health. Its failure to apply the principle of caution has
in turn made it impossible to ensure the high level of protec-
tion required by the EC Treaty and in Directive 91/414/EEC. In
disregarding the need for a high level of protection,
the
Commission must also be considered not to have fulfilled the
requirements of environmental protection and the principle of
integration laid down in the EC Treaty. The Commission has
thus breached Articles 6 and 174(2) EC and Article 5 of Direc-
tive 91/414/EEC. The Commission has also mishandled this
matter by failing to have regard for available published data on
paraquat and the risks associated with that substance. In so
doing it has breached Articles 174(3) EC and Article 5(1) of
Directive 91/414/EEC and Article 7(1) of Commission Regu-
lation (EEC) No 3600/92.

(1) OJ L 321, 6.12.2003, p. 32.
(2) OJ L 230, 19.8.1991, p. 1.

(a) set aside the judgment delivered by the Court of First
Instance of the European Communities (First Chamber) on
16 December 2003 in Joined Cases T–5/00 and T-6/00, at
least in so far as it relates to Case T-5/00, and, ruling anew,
annul in its entirety or at least in part the decision of the
Commission of the European Communities of 26 October
1999 addressed to the appellant, or at
least decide to
reduce substantially the fine imposed on FEG;

(b) in the alternative: set aside the judgment of 16 December
2003 by the Court of First
the European
Communities in Joined Cases T–5/00 and T-6/00, at least
in so far as it relates to Case T-5/00, and refer the matter
back to the Court of First Instance;

Instance of

(c) order the European Commission to pay the costs of the

proceedings at first instance and on the appeal.

Appeal brought on 1 March 2004 by Nederlandse Federa-
tieve Vereniging voor de Groothandel op Elektrotechnisch
Gebied (FEG) against the judgment of 16 December 2003
by the Court of First Instance (First Chamber) in Joined
Cases T–5/00 and T-6/00 Nederlandse Federatieve Vereni-
ging voor de Groothandel op Elektrotechnisch Gebied and
Technische Unie BV v Commission of
the European
Communities, supported by CEF City Electrical Factors BV
and CEF Holdings Ltd.

(Case C-105/04 P)

(2004/C 106/44)

An appeal was brought before the Court of Justice of the Euro-
pean Communities on 1 March 2004 by Nederlandse Federa-
tieve Vereniging voor de Groothandel op Elektrotechnisch
Gebied (FEG), represented by E.H Pijnacker Hordijk and D.J.M.
de Grave, advocaten, against the judgment of 16 December
2003 by the Court of First Instance (First Chamber) in Joined
Cases T–5/00 and T-6/00 Nederlandse Federatieve Vereniging voor
de Groothandel op Elektrotechnisch Gebied and Technische Unie BV
v Commission of the European Communities, supported by CEF
City Electrical Factors BV and CEF Holdings Ltd.

The appellant claims that the Court should:

Pleas in law and main arguments:

In the first place, the Court of First Instance infringed general
principles of Community law, in particular the principle that
proceedings must be concluded within a reasonable period, in
finding that the excessively long duration of the administrative
procedure did not constitute a ground for annulling the
contested decision. The view taken by the Court of First
Instance with regard to what constitutes a reasonable period
within which to conclude proceedings is at variance with the
case-law of the EC Court of Justice and of the Court of First
Instance itself.

In this regard the Court of First Instance misconstrued the case-
law of the European Court of Human Rights which it had cited
in support of its view.

in particular the principle of

Second, the Court of First Instance infringed the general princi-
the
ples of Community law,
presumption of innocence and the principle that reasons must
be given, by stating in its judgment (i) that the period prior to
notification of the statement of objections – and thus also the
period between dispatch of the warning letter of 16 September
1991 and the statement of objections – had to be left out of
consideration in the assessment of the reasonableness of the
period, and (ii) that no significance was to be attached to excul-
patory evidence dating from the period after the warning letter.
These positions taken by the Court of First Instance are intern-
ally contradictory and that Court failed to provide any valid
grounds to justify such contradiction. In addition, the failure to
take account of
the abovementioned exculpatory evidence
without further explanation constitutes a serious deficiency of
reasoning on the part of the Court of First Instance and under-
mines the principle of the presumption of innocence.