Case C-239/04: Action brought on 8 June 2004 by the Commission of the European Communities against the Portuguese Republic
Date: 2004-09-11
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, environmental impact, environmental protection, motorway, project evaluation, protected area, protection of animal life

C 228/20

EN

Official Journal of the European Union

11.9.2004

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 of 22.3.2001, p. 16.

Action brought on 8 June 2004 by the Commission of the
European Communities against the Portuguese Republic

(Case C-239/04)

(2004/C 228/39)

— the environmental impact assessment of the project in rela-
tion to implementation of the plan for the abovementioned
stretch of motorway clearly shows that the route concerned
does in fact have a very significant negative impact on 17
species of wild birds referred to in Annex I to Directive
79/409/EEC; and

— there were in fact alternative routes for that stretch of
motorway, which were situated both outside the Castro
Verde SPA and outside the residential areas in the places
mentioned by the Portuguese authorities. Since those alter-
natives are to be found in a corridor to the west of the
Castro Verde SPA between the edge of that area and the ‘IC
1’ road, they are located in flat country with a very low
population density, with the result
the Portuguese
authorities could have selected one of those alternatives
without there being either significant technical difficulties
or unreasonable additional costs.

that

Consequently, the Portuguese Republic did not comply with
Article 6(4) of Directive 92/43/EC. That provision allows a
Member State to carry out a plan or a project in respect of
which there has been a negative environmental impact assess-
ment only where there are no alternative solutions.

(1) OJ L 206 of 22.7.1992, p. 7.
(2) OJ L 305 of 8.11.1997, p. 42.

An action against the Portuguese Republic was brought before
the Court of Justice of the European Communities on 8 June
2004 by the Commission of the European Communities, repre-
sented by Michel Van Beek and António Caeiros, acting as
Agents, with an address for service in Luxembourg.

Action brought on 8 June 2004 by the Commission of the
European Communities against the Federal Republic of
Germany

The applicant claims that the Court should:

— declare that, by implementing a project for a motorway,
whose route crosses the special protection area (SPA) of
Castro Verde, notwithstanding the negative environmental
impact assessment and notwithstanding the existence of
alternative solutions for the route concerned, the Portu-
guese Republic failed to fulfil its obligations under Article
6(4) of Council Directive 92/43/EEC (1) of 21 May 1992 on
the conservation of natural habitats and of wild fauna and
flora, as amended by Directive 97/62/EC of 27 October
1997 (2);

— order the Portuguese Republic to pay the costs.

(Case C-244/04)

(2004/C 228/40)

An action against
the Federal Republic of Germany was
brought before the Court of Justice of the European Commu-
nities on 8 June 2004 by the Commission of the European
Communities, represented by Gerald Braun and Enrico Traversa
of its Legal Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

Pleas in law and main arguments:

for a
The Portuguese authorities
motorway, whose route (the stretch between Aljustrel and
Castro Verde) crosses the special protection area (SPA) of
Castro Verde even though:

implemented a project

1) declare the Federal Republic of Germany in breach of its
obligations under Article 49 EC in that by its practice based
on administrative circulars, it has consistently and dispro-
portionately restricted the posting of non-member-country
workers to Germany for the provision of services;

2) order the Federal Republic of Germany to pay the costs.