Case C-235/04: Action brought on 4 June 2004 by the Commission of the European Communities against the Kingdom of Spain
Date: 2004-08-07
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, bird, protected area, protection of animal life

7.8.2004

EN

Official Journal of the European Union

C 201/11

5. In light of Article 59 of the Vienna convention on the law
of the Treaties,
is the TRIPS agreement on trade-related
aspects of intellectual property rights (OJ 1994 L 336),
the World
which was concluded within the context of
Trade Organisation and entered into force on 1 January
1996, thus after the Community Agreement of 1993 (OJ
1994 L 337) entered into force,
to be interpreted as
meaning that its provisions governing homonyms in vine
names apply in place of those of the Community Agree-
ment of 1993 where there is inconsistency between the
two, given that the parties to both agreements are the
same?

6. In the case of two names that are homonyms and refer to
two different wines produced in two different countries
both party to the TRIPS Agreement (and both where the
homonym relates to two geographical names used in both
the countries party to TRIPS and where it relates to a
geographical name in one country and the like name relates
to a vine traditionally cultivated in another country party to
TRIPS), must Articles 22 to 24 of the Third Part of Annex
C to the Treaty Establishing the World Trade Organisation,
which contains the TRIPS Agreement (OJ 1994 L 336),
which entered into force on 1 January 1996, be interpreted
as meaning that both the names may continue to be used
provided that they have been used in the past by the respec-
tive producers either in good faith or for at least 10 years
prior to 15 April 1994 (Article 24(4)) and each name
clearly indicates the country or region or area of the origin
of the wine to which it refers in such a way as not to
mislead consumers?’

Reference for a preliminary ruling by the Arbeitsgericht
Düsseldorf by order of that court of 5 May 2004 in the
case of Ms Gül Demir against Securicor Aviation Limited,
Securicor Aviation (Germany) Limited and Kötter Security
GmbH & Co. KG.

Limited, Securicor Aviation (Germany) Limited and Kötter
Security GmbH & Co. KG, on the following question:

1. In examining whether there is — irrespective of the ques-
tion of ownership — a transfer of a business within the
meaning of Article 1 of Directive 2001/23/EC (1)
in the
context of a fresh award of a contract, does the transfer of
the assets from the original contractor to the new contractor
— having regard to all the facts — presuppose their transfer
for independent commercial use by the transferee? By exten-
sion, is conferment on the contractor of a right to determine
the manner in which the assets are to be used in its own
commercial interest the essential criterion for a transfer of
assets? On that basis, is it necessary to determine the opera-
tional significance of the contracting authority's assets for
the service provided by the contractor?

2. If the Court answers Question 1 in the affirmative:

(a) Is it precluded to classify assets as being for independent
commercial use if
they are made available to the
contractor by the contracting authority solely for their
use and responsibility for maintaining those assets,
including
the
contracting authority?

associated costs,

is borne by

the

(b) Is there independent commercial use by the contractor
when, for the purpose of conducting airport security
checks, it uses the walk-through metal detectors, hand-
held metal detectors and X-ray equipment supplied by
the contracting authority?

(1) OJ L 82, 22.3.2001, p. 16.

Action brought on 4 June 2004 by the Commission of the
European Communities against the Kingdom of Spain

(Case C-233/04)

(2004/C 201/20)

(Case C-235/04)

(2004/C 201/21)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Arbeitsgericht Düsseldorf
(Labour Court, Düsseldorf) (Germany) of 5 May 2004, received
at the Court Registry on 3 June 2004, for a preliminary ruling
in the case of Ms Gül Demir against Securicor Aviation

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 4 June
2004 by the Commission of the European Communities, repre-
sented by D.M. van Beek and Gregorio Valero Jordana, acting
as Agents, with an address for service in Luxembourg.

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.