Case C-442/04: Action brought on 21 October 2004 by the Kingdom of Spain against the Council of the European Union
Date: 2004-12-04
Institutions: Court of Justice
Subjects: Council of the European Union, Spain, action for annulment (EU), equal treatment, fishing area, fishing regulations, fishing rights

C 300/36

EN

Official Journal of the European Union

4.12.2004

‘1. Must Article 54 of the Convention of 19 June 1990 imple-
menting the Schengen agreement be construed as meaning
that it may apply in proceedings before a Belgian court in
regard to a person against whom a prosecution is brought
in Belgium after 25 March 2001 before a criminal court in
respect of the same offences for which that person was
convicted by judgment of Norwegian criminal court of 2
October 2000, and where the sentence imposed has already
been served, in a situation where, pursuant to Article 2(1)
of
the Agreement of 18 May 1999 concluded by the
Council of the European Union with the Republic of Ireland
and the Kingdom of Norway concerning the latters' associa-
tion with the implementation, application and development
of the Schengen acquis, Article 54 of the Convention imple-
menting the Schengen agreement is to be implemented and
applied by Norway only as from 25 March 2001?’

If the reply to Question 1 is affirmative:

‘2. Must Article 54 of the Convention of 19 June 1990 imple-
menting the Schengen Agreement, read with Article 71
thereof, be construed as meaning that offences of posses-
sion for the purposes of export and import in respect of the
same narcotic drugs and psychotropic substances of any
kind,
including cannabis, and which are prosecuted as
exports and imports respectively in different countries
which have signed the Schengen agreement, or where the
Schengen acquis is implemented and applied, are deemed to
be the “same offences” as mentioned in Article 54 afore-
said?’

Action brought on 15 October 2004 by the Commission
of the European Communities against the Kingdom of
Belgium

(Case C-437/04)

(2004/C 300/69)

Justice of

An action against the Kingdom of Belgium was brought before
the European Communities on 15
the Court of
October 2004 by the Commission of the European Commu-
nities, represented by J.-F. Pasquier, acting as Agent, with an
address for service in Luxembourg.

The Commission of the European Communities claims that the
Court should:

— declare that, by imposing a tax which infringes the Euro-
pean Communities'
the Kingdom of
Belgium has failed to fulfil its obligations under Article 3 of
the Protocol on the privileges and immunities of the Euro-
pean Communities;

immunity,

fiscal

Pleas in law and main arguments

fiscal

immunity under Article 3 of

The imposition by an Ordonnance Régionale of 23 July 1992
of a regional tax on occupiers of buildings and owners of real
property rights over certain buildings situated within the terri-
tory of the Région de Bruxelles-Capitale is an infringement of
the
the Communities'
Protocol on the privileges and immunities of the European
Communities of 8 April 1965. That Ordonnance has innovated
by comparison to the previous legislation by adding to the tax
imposed on occupiers, a tax on owners in the event of
commercial occupancy of a building with more than a certain
floor area. As the drafting history of the Ordonnance of 23 July
1992 shows, such taxation of owners is, in fact, a legal device
intended to circumvent the fiscal immunity of certain persons
or institutions occupying buildings. It is on those persons and
among them the Communities that the economic burden of
the tax actually falls, either because of contractual stipulations
in leases, under which they are to bear all rates and taxes on
they obtain exemption therefrom as
the building, unless
its effect on the rental.
regards the lessor, or because of
According to the case-law of the Court of Justice, any legal
provision which, without expressly subjecting the Community
to a tax, has the express aim and effect of making the Com-
munity, even indirectly but nonetheless compulsorily, bear a
tax, infringes the principle of immunity.

Action brought on 21 October 2004 by the Kingdom of
Spain against the Council of the European Union

(Case C-442/04)

(2004/C 300/70)

An action against the Council of the European Union was
brought before the Court of Justice of the European Commu-
nities on 21 October 2004 by the Kingdom of Spain, repre-
sented by Enrique Braquehais Conesa, Abogado del Estado,
with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul Articles 1 to 6 of Council Regulation (EC) No
1415/2004 (1) of 19 July 2004 fixing the maximum annual
fishing effort for certain fishing areas and fisheries, which
implement Articles 3 and 6 of Council Regulation (EC) No
1954/2003 (2) of 4 November 2003 on the management of
the fishing effort relating to certain Community fishing
areas and resources and modifying Regulation (EEC) No
2847/93 (3) and repealing Regulations (EC) No 685/95 (4)
and (EC) No 2027/95 (5); and

— order the Kingdom of Belgium to pay the costs.

— order the Council of the European Union to pay the costs.

4.12.2004

EN

Official Journal of the European Union

C 300/37

Pleas in law and main arguments:

Infringement of the principle of non-discrimination

(a) because Regulation (EC) No 1415/2004, which is chal-
lenged in the present action,
is a measure implementing
Regulation (EC) No 1954/2003, specifically Articles 3 and
6 thereof relating to the maximum annual fishing effort for
each Member State and for the various fishing areas and
fisheries laid down in those provisions, has been challenged
by the Kingdom of Spain (Case C-36/04) in so far as the
years 1998 to 2002 are used as the reference period. That
entails discrimination against the Spanish fleet on grounds
of nationality, since for those years, pursuant to provisions
in the Act of Accession of the Kingdom of Spain and the
Republic of Portugal to the European Communities and in
Regulations (EC) Nos 685/95 and 2027/95, the Spanish
fleet's access was limited to ICES areas V b, VI, VII and VIII
a, b, d and e;

(b) because the establishment of the sensitive area referred to
in Article 6 of Regulation (EC) No 1954/2003,
imple-
mented by the contested regulation (Regulation (EC) No
1415/2004), also discriminates against the Spanish fleet,
since the new sensitive area partly coincides with the so-
called ‘Irish box’, where restrictions apply to the Spanish
fleet
in accordance with the Accession Treaty for the
Kingdom of Spain and the Republic of Portugal.

Misuse of power:

because protection of the sensitive area provided for in Article
6 of Regulation (EC) No 1954/2003, implemented by Regu-
lation (EC) No 1415/2004 challenged in this action, should
have been established by applying the procedures laid down in
Regulation (EC) No 850/1998, which lays down technical
measures for the protection of juveniles of marine organisms,
and by reference to all the areas in respect of which it has been
scientifically established that this condition is fulfilled.

(1) OJ L 258 of 5.8.2004, p. 1.
(2) OJ L 289 of 7.11.2003, p. 1.
(3) OJ L 261 of 20.10.1995, p. 5.
(4) OJ L 71 of 31.3.1995, p. 5.
(5) OJ L 199 of 24.8.1995, p. 1.

Removal from the register of Joined Cases C-451/02 and
C-452/02 (1)

(2004/C 300/71)

By order of 27 July 2004 the President of the Court of Justice
of the European Communities has ordered the removal from
the register of Joined Cases C-451/02 and C-452/02 (reference
Bundesfinanzhof):
for
Hauptzollamt Bremen v Joh. C. Henschen GmbH & Co. KG (C-
451/02) and ITG GmbH Internationale Spedition (C-452/02).

preliminary

from the

ruling

a

(1) OJ C 55 du 8.3.2003.

Removal from the register of Case C-237/03 (1)

(2004/C 300/72)

By order of 22 July 2004 the President of the Court of Justice
of the European Communities has ordered the removal from
the register of Case C-237/03 (reference for a preliminary
ruling from the tribunal d'instance de Roubaix): SA Banque
Sofinco v Daniel Djemoui, Carole Djemoui.

(1) OJ C 184 du 2.8.2003.

Removal from the register of Case C-256/03 (1)

(2004/C 300/73)

By order of 25 August 2004 the President of the Court of
Justice of the European Communities has ordered the removal
from the register of Case C-256/03: Commission of the Euro-
pean Communities v Ireland.

(1) OJ C 184 du 2.8.2003.