Case C-332/04: Action brought on 28 July 2004 by Commission of the European Communities against Kingdom of Spain
Date: 2004-10-23
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, environmental impact, leisure park, national implementing measure, project evaluation, town planning

C 262/16

EN

Official Journal of the European Union

23.10.2004

Action brought on 30 July 2004 by the Commission of the
European Communities against the Italian Republic

The applicant claims that the Court should:

(Case C-330/04)

(2004/C 262/28)

An action against
Italian Republic was brought before the
Court of Justice of the European Communities on 30 July 2004
by the Commission of the European Communities, represented
by Chiara Cattabriga, acting as Agent.

The applicant claims that the Court should:

the European Parliament and of

1) Declare that, by failing to adopt and bring into force within
the prescribed period the laws, regulations and administra-
to comply with Directive
tive provisions necessary
2002/33/EC (1) of
the
Council of 21 October 2002 amending Council Directives
90/425/EEC (2)
regards health
requirements for animal by-products, or in any event by
failing to communicate them to the Commission, the Italian
Republic has failed to fulfil its obligations under Article 3(1)
thereof; and

and 92/118/EEC (3)

as

(a) declare that:

— by incompletely transposing Article 3 of Directive
85/337/EEC (1) of 27 June 1985 on the assessment of
the effects of certain public and private projects on the
environment, as amended by Directive 97/11/EC, (2)

— by failing to transpose Article 9(1) of Directive

85/337/EEC, as amended,

— by infringing the transitional rules laid down by Article

3 of Directive 97/11/EC,

— by failing correctly to transpose point 10(b) of Annex II
to Directive 85/337/EEC, as amended, in conjunction
with Article 2(1) and Article 4(2), and

— by failing to subject to the impact assessment procedure
the plans for the construction of a leisure centre at
Paterna (Valencia) and, consequently, by failing to apply
Articles 2(1), 3, 4(2), 8 and 9 of Directive 85/337/EEC,
as amended,

2) Order the Italian Republic to pay the costs.

the Kingdom of Spain has failed to fulfil
under those directives;

its obligations

Pleas in law and main arguments

(b) order the kingdom of Spain to pay the costs.

The period for transposing the directive expired on 16 May
2003.

Pleas in law and main arguments

(1) OJ L 315 of 19.11.2002, p. 14.
(2) OJ L 224 of 18.8.1990, p. 29.
(3) OJ L 62 of 15.3.1993, p. 49.

Action brought on 28 July 2004 by Commission of the
European Communities against Kingdom of Spain

(Case C-332/04)

(2004/C 262/29)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 28 July
2004 by the Commission of the European Communities, repre-
sented by Gregorio Valero Jordana, of its Legal Service, and by
Florence Simonetti, a detached national expert assigned to that
service, with an address for service in Luxembourg.

The Spanish legislation amending domestic law so as to make
it conform with Directive 85/337/EEC, as amended by Direc-
tive 97/11/EC, comprising essentially Royal Legislative Decree
No 1302/1986 of 28 June 1986, on environmental
impact
evaluation, as amended by Law No 6/2001 of 8 May 2001,
does not require the environmental impact assessment to eval-
uate the foreseeable effects of the interaction of various envir-
onmental factors with each other, contrary to the requirements
of Article 3 of Directive 85/337/EEC, as amended.

The Spanish legislation does not
include an obligation to
render public the administrative decision to grant or withhold
authorisation for implementation of the project, the terms of
the decision and the conditions attached to it, contrary to the
requirements of Directive 85/337/EEC, as amended.

Articles 3(1) and (2) of Directive 97/11/EC state that the provi-
sions of that Directive are to be applied to new projects for
which authorisation is sought on or after 14 March 1999. The
Spanish legislation breaches that Community provision since it
does not apply to private projects for which the administrative
authorisation procedure is pending or
to public projects
already at the public information stage or already approved
before 8 October 2000.

23.10.2004

EN

Official Journal of the European Union

C 262/17

Annex II to Directive 85/337/EEC, as amended,
includes in
Point 10(b), among the projects which may have to be the
subject of an environmental impact assessment, urban-develop-
ment projects, including the construction of shopping centres
and parking facilities. The Spanish legislation reduces that
requirement so as to apply only to projects outside urban
areas. The Commission considers that that reduction of scope,
which generally excludes the taking into consideration of
criteria or thresholds relating to the dimensions and nature of
the projects, goes beyond the degree of latitude available to the
Member States under Articles 2(1) and 4(2) of Directive
85/337/EEC, as amended.
is clear from an
analysis of the State and Autonomous Community legislation
on town planning and of the Autonomous Community legisla-
tion on environmental impact assessments that urban-develop-
ment projects on urban land and developable land are not, in
most of the Autonomous Communities, subject to environ-
mental impact assessment.

In addition,

it

Because the domestic legislation was not properly amended so
as to conform with Annex II to Directive 85/337/EEC, as
amended, the Spanish authorities did not carry out an environ-
mental
for a leisure centre at Paterna
(Valencia), the only explanation given for not doing so being
that it was to be constructed in an urban area.

impact assessment

(1) OJ L 175 of 5.7.1985, p. 40.
(2) Council Directive

of 3 March 1997 amending Directive

85/337/EEC, OJ L 73 of 14.3.1997, p. 5.

The appellants claim that the Court should:

— set aside the order and refer the case back to the Court of

First Instance;

— order the defendant to pay the costs of the dispute.

Pleas in law and main arguments

Contrary to the findings of the Court of First Instance, the
appellants are individually concerned by the Commission deci-
sion contested in the main proceedings.

The appellants put forward eight grounds of appeal.

1) The contested decision proceeds on an incorrect

the ad hoc working party of

factual
basis: there is incontestably no report of 22 November
2002 of
the Standing
Committee on Construction. The working party set up at
the 55th meeting of the Standing Committee on 10/11
September 2002 under the objection procedure pursuant to
Article 5(1) of Directive 89/106/EEC never met and/or
adopted such a report.

Appeal brought on 10 August 2004 by the Hauptverband
der Deutschen Bauindustrie e.V., Kaefer Isoliertechnik
GmbH & Co. KG and Geschäftsführer Jürgen Schmoldt
against the order made on 25 May 2004 by the Third
Chamber of the Court of First Instance of the European
Communities
Jürgen
Schmoldt, Kaefer Isoliertechnik GmbH & Co. KG and
Hauptverband der Deutschen Bauindustrie e.V. and (ii) the
Commission of the European Communities

in Case T-264/03 between (i)

(Case C-342/04 P)

(2004/C 262/30)

An appeal against the order made on 25 May 2004 by the
Third Chamber of the Court of First Instance of the European
Communities in Case T-264/03 between (i) Jürgen Schmoldt,
Kaefer Isoliertechnik GmbH & Co. KG and Hauptverband der
Deutschen Bauindustrie e.V. and (ii) the Commission of the
European Communities was brought before the Court of Justice
of the European Communities on 10 August 2004 by the
Hauptverband der Deutschen Bauindustrie e.V., Kaefer Isolier-
technik GmbH & Co. KG and Geschäftsführer [manager] Jürgen
Schmoldt, represented by Prof. Hans-Peter Schneider, Romin-
teweg 3, D-30559 Hanover.

2) The third appellant did not bring an action ‘on a personal
basis’: the third appellant is incontestably manager of the
federal division for ‘heat, cold, acoustic and fire insulation’
of the first appellant, which is an association of the under-
takings in Germaany using construction products in that
field, and is employed as such with the first appellant. His
official tasks include representing the first appellant and the
undertakings affiliated to it in the context of the relevant
national and European standardisation work.

3) Community law lays down procedural guarantees for the
appellants. The procedural guarantees
relating to the
Standing Committee on Construction that are contained in
Article 5(1) of Directive 89/106/EEC and in the seventh
recital in its preamble must also be for the benefit of those
whom the Standing Committee professionally involves as an
ad hoc working party in the opinion required under Article
5(1).

4) In the procedure

under Article 5(1) of Directive
89/106/EEC, the third appellant as member of the ad hoc
working party of the Standing Committee on Construction
represented not only the first appellant but, of course, also
the second appellant as an affiliated undertaking. The
second appellant is incontestably a member of the first
appellant's federal division for ‘heat, cold, acoustic and fire
insulation’.

5) The second appellant made clear to the Court of First
Instance, using four instances by way of example, that there
was interference with ongoing contracts.