Case C-422/05: Action brought on  28 November 2005  by the Commission of the European Communities against the Kingdom of Belgium
Date: 2006-02-25
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, aircraft, airport, noise protection

25.2.2006

EN

Official Journal of the European Union

C 48/13

The appellant claims that the Court should:

— declare the present appeal

to be admissible and well

founded;

— set aside the judgment delivered by the Court of First

Instance on 13 September 2005;

— grant the application made at first instance for the annul-
ment of Commission Decision REM 09/00 of 16 November
2001 stating that remission of import duties in favour of
the present appellant was not justified;

— alternatively, remit the case to the Court of First Instance

for further consideration;

— order the Commission to pay the costs of
proceedings and of those at first instance.

the present

Pleas in law and main arguments

In support of its appeal against the aforementioned judgment,
the appellant makes the following submissions:

interpretation of,

1. The appellant takes the view that the Court of First Instance
proceeded on the basis of an incorrect, or at any rate
unduly restricted,
in particular, Articles
905 to 909 of the regulation implementing the Community
Customs Code (1) with regard to the procedure for the
repayment and/or remission of customs duties. The prin-
ciple of legal certainty requires that the legal situation of
Ricosmos should have been foreseeable in this particular
case. Ricosmos takes the view that, because of suspensions
of the proceedings of which it was not informed, that was
not the case here. The Court of First Instance also proceeded
incorrectly on the basis of an overly restricted view of the
rights of the defence, reflected in its excessively circum-
scribed interpretation of the right to timeous and full access
to the case files (both that of the national customs authori-
ties and that of the Commission):

2. The appellant considers that the decision of the Court of
First Instance is also at variance with Community law. It
takes the view that the principle of
legal certainty also
implies that the criteria for determining that there was no
obvious negligence must be clear and readily identifiable. It
is precisely because of the considerable flexibility of the
term 'obvious negligence' that those criteria ought in prin-
ciple to be construed restrictively and individually. The
negligence must be evident and essential and must also be
in a clear causal relationship with the special situation
which has been established. In this case, the Court of First
Instance wrongly attached in this regard no, or not enough,
weight to the complexity of the legislation and to the signif-
icant professional experience of
the appellant, and also
misconstrued a number of obligations on the appellant, or
at any rate appraised them in an overly formalistic manner;

3. The appellant

the Commission
infringed the principle of proportionality and that the Court

is also of the view that

of First Instance also attached no, or at any rate insufficient,
weight to new facts which suggested that the customs duties
charged ought to have been cancelled;

4. In conclusion, the appellant expresses the view that the
establishment by the Court of First Instance of the facts
underlying the dispute was in part erroneous or in any
event incomplete.

(1) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying
down provisions for the implementation of Council Regulation
(EEC) No 2913/92 establishing the Community Customs Code (OJ
1993 L 253, p. 1).

Action brought on 28 November 2005 by the Commission
of the European Communities against the Kingdom of
Belgium

(Case C-422/05)

(2006/C 48/26)

(Language of the case: French)

Justice of

An action against the Kingdom of Belgium was brought before
the Court of
the European Communities on 28
November 2005 by the Commission of the European Commu-
nities, represented by Frank Benyon and Mikko Huttunen,
acting as Agents, with an address for service in Luxembourg.

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

1. Declare that, by adopting the Royal Decree of 14 April
2002 regulating night
flights of certain types of civil
subsonic jet aircraft, the Kingdom of Belgium has failed to
its obligations under Directive 2002/30/EC (1) and
fulfil
under the second paragraph of Article 10 EC in conjunction
with the third paragraph of Article 249 EC;

2. Order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Decree specifies certain types of aircraft which cannot
operate in Belgian airports between 11 pm and 6 am. As it is
based on the by-pass ratio, the Royal Decree takes a different
approach to that of Directive 2002/30/EC, which is based on a
certification procedure. This approach corresponds to that
taken in Regulation (EC) No 925/1999, which was repealed by
Directive 2002/30/EC.

C 48/14

EN

Official Journal of the European Union

25.2.2006

According to Article 16 of Directive 2002/30/EC, which
entered into force on 28 March 2002, the Member States were
required to bring into force the laws, regulations and adminis-
trative provisions necessary to comply with the Directive by 28
September 2003 at the latest. The Royal Decree was adopted
before the deadline for transposition of
the Directive. The
Commission cites the case-law of the Court of Justice according
to which it
follows from Articles 10 EC and 249 EC in
that, during the period
conjunction with a directive itself
allowed for transposition, Member States must refrain from
taking any measures liable seriously to compromise the result
prescribed by the directive in question in question. By taking
an approach involving operating restrictions aimed at the with-
drawal of
recertified civil subsonic jet aircrafts, which is
completely different from that taken by the Directive, the Royal
Decree seriously compromises the result prescribed by the
Directive.

(1) OJ L 85, 28.3.2002, p. 40.

Action brought on 29 November 2005 by the Commission
of the European Communities against the French Republic

— to ensure that establishments and undertakings which
carry out disposal operate with a permit issued by the
competent authorities;

— to ensure in relation to landfill sites which had been
granted a permit or were already in operation when
Council Directive 99/31/EC of 26 April 1999 on the
landfill of waste (2) was to be transposed into national
law, namely on 16 July 2001, that landfill operators
prepared and presented to the competent authorities, for
their approval, prior to 16 July 2002 a conditioning
including particulars relating to the
plan for the site,
conditions of the permit and any corrective measures
the operator considered would be needed, and that,
following the presentation of conditioning plans, the
take a definite decision on
competent authorities
whether operations may continue, taking all necessary
measures to close down as soon as possible sites which
have not been granted a permit to continue to operate
or authorising the necessary work and laying down a
transitional period for the completion of the plan,

the French Republic has failed to fulfil its obligations under
Articles 4, 8 and 9 of Directive 75/442/EEC, as amended by
Directive 91/156/EEC, (3) and Article 14(a), (b) and (c) of
Directive 99/31/EC.

(Case C-423/05)

(2006/C 48/27)

(Language of the case: French)

2. order the French Republic to pay the costs.

Pleas in law and main arguments

Justice of

An action against the French Republic was brought before the
the European Communities on 29
Court of
November 2005 by the Commission of the European Commu-
nities, represented by A. Caerios and M. Konstantinidis, acting
as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

1. declare that by failing to take all necessary measures:

— to ensure that waste is recovered or disposed of without
endangering human health or the environment and to
prohibit
the abandonment, dumping or uncontrolled
disposal of waste;

— to ensure that any holder of waste has it handled by a
private or public waste collector or by an undertaking
which carries out disposal or recovery operations, or
recovers or disposes of it himself, in accordance with
Council Directive 75/442/EEC of 15 July 1975 on
waste; (1)

The Commission considers that, by permitting a very large
number of unlawful and unsupervised landfill sites to operate
in France, and by failing to take all necessary measures to
ensure that waste is disposed of without endangering human
health and harming the environment, the French Republic has
failed to fulfil
its obligations under Articles 4, 8 and 9 of
Council Directive 75/442/EEC on waste, as amended by Direc-
tive 91/156/EEC. The French authorities do not dispute that
they have breached these obligations; they do dispute, however,
the number of unlawful landfill sites indicated by the Commis-
sion and claim that their impact on the environment is slight
since the unauthorised landfill sites take only green waste,
rubble and bulky waste.

The French authorities did not provide adequate information
for it
to be possible to assess whether its permit system
complies with the requirements of Article 9 of Directive
75/442/EEC: no permit is required for tips covering an area of
less than 100 m2 with a height of less than 2m or for the
recovery of waste on such tips. The French authorities' interpre-
tation that only landfill sites operated by municipal authorities
without a permit are unlawful sites is incorrect since an indivi-
dual may also operate a landfill site without a permit.