Case C-237/04: Reference for a preliminary ruling by the Tribunale di Cagliari by order of that court of 14 May 2004 in the case of Enirisorse SpA and Sotacarbo SpA
Date: 2004-08-07
Institutions: Court of Justice
Subjects: Italy, State aid, control of State aid, freedom to provide services, harbour installation, interpretation of the law, right of establishment

C 201/12

EN

Official Journal of the European Union

7.8.2004

The applicant claims that the Court should:

Reference for a preliminary ruling by the Tribunale di
Cagliari by order of that court of 14 May 2004 in the case
of Enirisorse SpA and Sotacarbo SpA

1. Declare that, by failing to classify territories of a sufficient
number and size as special protection areas for birds in
order to provide protection for all the species of birds listed
in Annex I to Council Directive 79/409/EEC (1) of 2 April
1979 on the conservation of wild birds and for the migra-
tory species not mentioned in the said Annex I,
the
Kingdom of Spain has failed to fulfil its obligations under
that directive;

2. Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Article 4(1) and (2) of Directive 79/409/EC places on Members
States an obligation to classify territories as special protection
areas for the conservation of birds, to ensure effective protec-
tion of the species listed in Annex I to that directive and of
in order to guarantee
regularly occurring migratory species,
their survival and reproduction in their area of distribution.
That obligation relates, as a minimum, to all the most suitable
territories, as regards their number and size, for the conserva-
tion of the species concerned, having regard to their protection
requirements. What constitutes a sufficient number of special
protection areas is determined by reference to the objective
pursued.

The Member Stakes enjoy a degree of latitude in determining
which territories best meet the requirements listed in Article 4
of the directive, but they must base their evaluations solely on
scientific ornithological criteria. In the case of Spain, the inven-
tory of important bird areas (IBA) drawn up by the Sociedad
Española de Ornitología (Spanish Ornithological Society)
in
1998 (SEO/Birdlife Inventory 98) constitutes the best docu-
mented and most accurate basis available for defining the most
suitable territories for conservation and, in particular, for the
survival and reproduction of important species. That inventory
is based on balanced ornithological criteria, making it possible
to indicate which places are most suitable for guaranteeing
conservation of all the species mentioned in Annex 1 and other
migratory species, and identifies the priority areas for the
conservation of birds in Spain.

From a comparison of the data of the SEO/Birdlife Inventory
98 with the special protection areas designated by the
Kingdom of Spain, for Spanish territory as a whole, and from a
more detailed analysis by the Autonomous Communities, it can
be inferred that the number and size of the areas classified as
special protection areas fall short of what scientific evidence
indicates as the areas most suitable for providing adequate
protection of the birds covered by Article 4 of the directive.

(1) OJ L 103 of 25.4.1979, p. 1.

(Case C-237/04)

(2004/C 201/22)

Reference has been made to the Court of Justice of the Euro-
the Tribunale di Cagliari
pean Communities by order of
(Cagliari District Court) of 14 May 2004, received at the Court
Registry on 7 June 2004, for a preliminary ruling in the case of
Enirisorse SpA and Sotacarbo SpA on the following questions:

(a) Does Article 33 of Law [273/02] implement an incompa-
tible State aid in favour of Sotacarbo SpA., within the
meaning of Article 87 of the Treaty and does it do so,
moreover, unlawfully in so far as the Commission was not
informed of that aid, within the meaning of Article 88(3)
EC?

(b) Does Article 33 of Law [273/02] conflict with Articles 43,
44, 48 and 49 et seq. EC, concerning freedom of establish-
ment and the free movement of services?

Action brought on 14 June 2004 by the Commission of
the European Communities against the Hellenic Republic

(Case C-250/04)

(2004/C 201/23)

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 14 June
2004 by the Commission of the European Communities, repre-
sented by Georgios Zavvos and Michael Shotter, of its Legal
Service.

The Commission claims that the Court should:

necessary

— declare that, by failing to adopt, or in any event to notify to
the Commission, the laws, regulations and administrative
Directive
provisions
2002/19/EC (1) of
the
Council of 7 March 2002 on access to, and interconnection
of, electronic communications networks and associated
facilities (Access Directive), the Hellenic Republic has failed
to fulfil its obligations under that directive;

the European Parliament and of

comply

with

to

— order the Hellenic Republic to pay the costs.