Case C-226/05: Action brought on 20 May 2005 by the Commission of the European Communities against the Republic of Austria
Date: 2005-07-09
Institutions: Court of Justice
Subjects: Austria, European Commission, accident prevention, action for failure to fulfil an obligation, dangerous substance, environmental risk prevention, exchange of information, industrial hazard, location of industry, national implementing measure, public health

9.7.2005

EN

Official Journal of the European Union

C 171/11

Paragraph 94(2) of the Austrian Fremdengesetz does not allow
for appeals against refusals or declarations of invalidity of visas.
This provision infringes the obligation under Article 8 of the
directive, according to which the person concerned must have
the same legal remedies as are available to nationals of the
State concerned in respect of acts of the administration, regard-
less of whether these are remedies submitted to administrative
authorities or the courts. The Commission considers incorrect
the Republic of Austria's arguments that the refusal of legal
remedies in this connection is justified by the fact that neither
refusals nor declarations of invalidity of visas have any conse-
quential effect beyond the individual act in question and that
submitting a new application is a quicker means of reaching
one's goal than pursuing a legal remedy against the decision.
Submitting a renewed application entails the risk that
the
objectively incorrect decision may simply be repeated.

(1) OJ, English Special Edition 1963-1964, p. 117.

Action brought on 20 May 2005 by the Commission of
the Republic of
the European Communities against

Austria

(Case C-226/05)

(2005/C 171/19)

(Language of the case: German)

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 20 May
2005 by the Commission of the European Communities, repre-
sented by Dr Bernhard Schima, acting as Agent with an address
for service in Luxembourg.

The Commission claims that the Court should:

— contrary to Article 24(1), it has failed to enact any provi-
sions to implement the directive as regards the Federal
Government's law on mineral raw materials, its law on
blasting supplies and explosives and the law of the Land
of Salzburg relating to electricity production;

— it has failed to implement Article 11 as regards external
emergency plans in the Länder of Burgenland, Salzburg,
Styria and Tyrol;

— it has failed to implement Article 12 of the directive in

the Land of Upper Austria;

— it has failed to implement Article 8(2)(b) of the directive
in the Länder of Burgenland, Upper Austria, Salzburg,
Tyrol and Vorarlberg;

or that the Republic of Austria has failed to inform the
Commission of any implementing measures in all
these
instances;

2. order the Republic of Austria to pay the costs.

Pleas in law and main arguments:

According to Article 24(1) of Council Directive 96/82/EC of 9
December 1996 on the control of major-accident hazards
involving dangerous substances, the directive should be imple-
mented in national law by the Member States not later than 24
months after its entry into force, that is to say, by 3 February
1999. The implementation of the directive in Austria rests
partly with the Federal Government and partly with the Länder.

The Commission is of the opinion that the implementation of
the directive in the Republic of Austria is incomplete or insuffi-
cient: there are gaps as regards implementation in areas of
importance and the implementing measures partly fall short of
the requirements of the directive.

At the Federal law level, implementation in the areas of the law
on mineral raw materials and the law on blasting supplies and
explosives is still outstanding. At the level of the Länder, imple-
mentation of the directive in the area of the Salzburg law
relating to electricity production is still outstanding.

1. declare that the Republic of Austria has failed to fulfil its
obligation to completely implement Council Directive
96/82/EC of 9 December 1996 on the control of major-
accident hazards involving dangerous substances (1) in that

Article 11(1) of the directive — the drawing up of an external
emergency plan for measures to be taken outside the establish-
ment — has not been implemented in the Länder of Burgen-
land, Salzburg, Styria and Tyrol.

C 171/12

EN

Official Journal of the European Union

9.7.2005

Article 12 of the directive lays a duty on Member States to take
the objectives of preventing major accidents and limiting the
consequences of such accidents into account in their land-use
policies and/or other relevant policies. Member States have a
duty to control the siting of new establishments and to set up
appropriate consultation procedures to facilitate the implemen-
tation of the policies. However, the Commission has received
no implementing measure in respect of Article 12 for the Land
of Upper Austria.

With regard to the so-called ‘domino effect’ establishments,
Article 8(2)(b) of the directive requires Member States to make
provision for cooperation in informing the public and in
supplying information to the competent authority for the
preparation of external emergency plans. This provision has
not, as yet, been implemented in the Länder of Burgenland,
Upper Austria, Salzburg, Tyrol and Vorarlberg.

(1) OJ L 10, 14.1.1997, p. 13.

Action brought on 26 May 2005 by the Commission of
the European Communities against the French Republic

(Case C-232/05)

(2005/C 171/20)

(Language of the case: French)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 26 May
2005 by the Commission of the European Communities, repre-
sented by Christophe Giolito, acting as Agent, with an address
for service in Luxembourg.

The applicant claims that the Court should:

State aid granted by the French Republic to Scott Paper SA
Kimberly-Clark (State aid CR 38/1998, ex NN 52/1998) (OJ
2002 L 12, p. 1), the French Republic has failed to fulfil its
obligations under the fourth paragraph of Article 249 of the
EC Treaty and Articles 2 and 3 of that decision;

2. order the French Republic to pay the costs.

Pleas in law and main arguments

The French authorities have not done what is necessary to
ensure the correct,
immediate and effective execution of the
decision in accordance with national procedures, contrary to
Article 14(1) and (3) of Council Regulation (EC) No 659/1999
of 22 March 1999 laying down detailed rules for the applica-
tion of Article 93 of the EC Treaty (1) which provides that the
Member State is to take all necessary measures to recover the
aid from the beneficiary. The decision of the national court
runs counter to its obligation to give practical effect to Com-
munity law, and under French law it is not possible to take
interim measures to offset the automatic effect of the stay of
proceedings.

times for a copy of

The position of the French authorities appears to be contrary
to the duty to cooperate in good faith as defined in Article 10
EC. France did not reply to the Commission's letter of 21
November 2003 despite three reminders and a meeting held
between the Commission's DG Competition and the French
authorities to go over the French cases of recovery of State aid.
In particular, in spite of the fact that the Commission asked
France several
the order staying the
proceedings, it never obtained one. The Commission therefore
remains uncertain with regard to the exact progress of the
recovery proceedings. That doubt is moreover increased by the
fact that information obtained from unofficial sources in July
2004 by the Commission shows that the order staying the
proceedings was never made, contrary to the assertions of the
French authorities. In those circumstances, the Commission is
unable to deal with the recovery in a spirit of cooperation in
good faith as defined by the case-law of the Court.

1. declare that, by failing to execute, within the prescribed
period, the Commission decision of 12 July 2000 on the

(1) OJ L 83 of 27.03.1999, p. 1.