Case C-193/07: Action brought on 5 April 2007 — Commission of the European Communities v Republic of Poland
Date: 2007-08-25
Institutions: Court of Justice
Subjects: Poland, action for failure to fulfil an obligation, afforestation, environmental protection, protected area, road building

C 199/14

EN

Official Journal of the European Union

25.8.2007

Order of
the Court (Fifth Chamber) of 23 May 2007
(reference for a preliminary ruling from the Sozialgericht
Würzburg, Germany) — Otmar Greser v Bundesagentür
für Arbeit

(Case C-438/06) (1)

Order of the Court (Eighth Chamber) of 13 June 2007
(references for a preliminary ruling from the Tribunal
Superior de Justicia de Asturias (Spain)) — José Manuel
Blanco Pérez, María del Pilar Chao Gómez v Consejería de
Salud y Servicios Sanitarios, Federación Empresarial de
Farmacéuticos (FEFE), Principado de Asturias

(Joined Cases C-72/07 and C-111/07) (1)

(Preliminary reference — Manifest inadmissibility)

(Reference for a preliminary ruling — Inadmissibility)

(2007/C 199/23)

Language of the case: German

(2007/C 199/24)

Language of the case: Spanish

Referring court

Sozialgericht Würzburg, Germany

Parties

Referring court

Tribunal Superior de Justicia de Asturias (Spain)

Parties

Applicants:
Gómez

José Manuel Blanco Pérez, María del Pilar Chao

Defendants: Consejería de Salud y Servicios Sanitarios, Federación
Empresarial de Farmacéuticos (FEFE), Principado de Asturias

Applicant: Otmar Greser

Re:

Defendant: Bundesagentür für Arbeit

Re:

71(1)(b)

of Article

of Regulation

Reference for a preliminary ruling — Sozialgericht Würzburg —
(EEC)
Interpretation
No 1408/71 of the Council of 14 June 1971 on the application
of social security schemes to employed persons and their
families moving within the Community (OJ, English Special
Edition 1971 (II), p. 416) — Calculation of the unemployment
benefits of a boatman on the Rhein (‘Rheinschiffer’) who was
resident, during his last period of employment, on the territory
of a Member State other than the State of employment and
returned, in accordance with his contract of employment, only
every second week to his place of residence — Classification of
that worker as ‘a frontier worker’ or ‘a worker, other than a
frontier worker’

Operative part of the order

The reference for a preliminary ruling made by the Sozialgericht Würz-
burg by decision of 28 September 2006 is manifestly inadmissible.

(1) OJ C 326, 30.12.2006.

Reference for preliminary ruling — Tribunal Superior de Justicia
de Asturias — Interpretation of Article 43 EC — Regulations
laying down conditions required to open new pharmacies

Operative part of the order

The references for preliminary rulings made by the Tribunal Superior
de Justicia de Asturias, by decisions of 30 November 2006 and
29 January 2007, are manifestly inadmissible.

(1) OJ C 82, 14.4.2007.
OJ C 95, 28.4.2007.

Action brought on 5 April 2007 — Commission of the
European Communities v Republic of Poland

(Case C-193/07)

(2007/C 199/25)

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (repre-
sented by: D. Recchia and K. Herrmann, acting as Agents)

Defendant: Republic of Poland

25.8.2007

EN

Official Journal of the European Union

C 199/15

Form of order sought

— Declare that, by failing to take appropriate measures to
avoid deterioration in the habitats and significant distur-
bance to the species
in the SPA Puszcza Augustowska,
PLB 200002, in the context of the approval procedures for
the bypass around Augustów, a town in the north-east of its
territory, the Republic of Poland has failed to fulfil its obliga-
tions under Article 6(2) and (7) of Directive 92/43/EEC on
the conservation of natural habitats and of wild fauna and
flora (1);

— Declare that, by failing to submit the project for the bypass
around Wasilków, a town in the north-east of its territory, to
due assessment of the impact of the project on the SPA
Puszcza Knyszyńska, PLB 200003, and by approving that
project despite its adverse impact on the integrity of the area
in question and by starting work on that project,
the
Republic of Poland has failed to fulfil its obligations under
Article 6(3) and (7) of Directive 92/43/EEC on the conserva-
tion of natural habitats and of wild fauna and flora;

— Declare that, by proposing to carry out an afforestation
project as a compensatory measure for the loss of
the
Puszcza Augustowska area, PLB 200002, over the area which
is to be proposed as a site of Community [Importance] in
accordance with Directive 92/43/EEC (‘Pojezierze Sejneńskie’,
PLH 200007, of a total surface area of 7 456,9 ha), the
Republic of Poland has infringed the provisions of Directive
92/43/EEC on the conservation of natural habitats and of
wild fauna and flora in the light of the judgments delivered
by the Court in Cases C-117/03 Dragaggi and C-244/05
Bund Naturschutz;

— Declare that, by approving the destruction of the habitat
Puszcza Augustowska inside an area which is to be proposed
as a Site of Community Importance in accordance with
Directive 92/43/EEC (Ostoja Augustowska PLH 200005) in
the bypass around
the context of
Augustów, a town in the north-east of
its territory, the
Republic of Poland has infringed the provisions of Directive
92/43/EEC on the conservation of natural habitats and of
wild fauna and flora in the light of the judgments delivered
by the Court in the Cases C-117/03 Dragaggi and C-244/05
Bund Naturschutz;

the construction of

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

achieve that objective, provision is made, inter alia, for the clas-
sification of special protection areas (‘SPAs’). Article 6(2) of the
above directive requires the Member States to take appropriate
measures to avoid, by any of their acts, the deterioration of sites
and significant disturbance to the species for which sites were
classified, while Article 6(3) provides that the Member States are
required to submit any plan or project not directly linked or
necessary to the management of a site but liable significantly to
affect that site to due assessment of its impact on the site having
regard to the conservation objectives of that site.

Poland is in the process of carrying out two road projects to
bypass the towns of Augustów and Wasilków inside protected
areas within the meaning of the abovementioned directives, in
breach of Article 6(2) and (3), in conjunction with Article 7, of
the Habitats Directive with regard to two Special Protection
Areas (SPAs) and in breach of the system of protection which
follows from the case-law in Dragaggi
(C-117/03) and Bund
Naturschutz (C-244/05) with regard to a potential site of Com-
munity importance (SCI). In addition, Poland has proposed a
compensatory measure for the ecological losses suffered because
of the implementation of the project for a bypass, to be built on
a potential Site of Community Important (SCI), which is likely
to harm the ecological features of that site, around the town of
Augustów.

With regard to the road project to bypass of the town of
Augustów, its route is intended to cross the SPA Puszcza Augus-
towska and the potential SCI Ostoja Augustowska. The SPA forms
the habitat of 41 species of birds listed in Annex I to the Birds
Directive, while the site of Ostoja Augustowska contains 21 types
of habitat listed in Annex I to the Habitats Directive. Further-
more, the latter site is the habitat of nine animal species and
eight plant species listed in Annex II to the Habitats Directive,
including a priority species, that is to say the wolf. The site of
Ostoja Augustowska meets all the ecological criteria of Annex III
of the Habitats Directive for proposal and subsequent classifica-
tion as an SCI under that directive.

With regard to the scheme applicable to that project and to its
impact on the SPA,
it should be noted that its authorisation
procedure began before the date of accession of Poland. The
Commission takes the view, in accordance with the ruling in
Case C-209/04 Commission v Austria, that the provisions of
Article 6(3) and (4) of the Habitats Directive do not apply.
However, the substantive provisions of that directive, in particu-
lar Article 6(2), apply from the time of accession. With regard
to that project and its impact on the potential SCI, the Commis-
sion takes the view that their legal scheme does not differ from
that
and Bund
judgments
Naturschutz,
the requirements for protection being identical.
Moreover, that scheme applies from the time of accession of
Poland to the European Union because it constitutes substantive
obligations relating to the objective of the Habitats Directive; if
the opposite were the case the result would be that the Member
States would not be bound by the objectives of the Directive
with regard to projects whose authorisation procedure had
begun before the date of accession.

indicated in the

in Dragaggi

The present action concerns incorrect application of Directives
79/409/EEC (2) (Birds) and 92/43/EEC (Habitats). The Habitats
Directive aims to create a coherent European ecological network
in order to promote the maintenance of or reestablishment to a
suitable state of conservation of natural habitats and wild fauna
and flora on the territory of the Member States. In order to

The project in question damages habitats, disturbs species for
which the SPA was classified and does not constitute a measure
liable to safeguard the interests of the potential SCI at a national
level. The project will cause irreversible harm and will lead to

C 199/16

EN

Official Journal of the European Union

25.8.2007

deterioration of the unique and exceptional ecosystem of the
valley of the Rospuda river in terms of its impact on birds, habi-
tats and species in need of protection within the meaning of
Directives 79/409/EEC and 92/43/EEC. It must be noted that, at
the time of the impact assessment of the Augustów bypass
project on the Natura 2000 areas, the Polish authorities did not
take appropriate account of alternative solutions. By having
failed to show the lack of alternative solutions, the Polish autho-
rities cannot rely on an overriding public interest in order to
approve the project in question.

With regard to the road project to bypass of the town of
Wasilków, its route is intended to cross the SPA Puszcza Knys-
zyńska which forms the habitat of 37 species of birds listed in
Annex I of the Birds Directive. The authorisation procedure
began before the accession of Poland to the European Union,
and thus it is a project to which the procedural provisions in
Article 6(3) and (4) apply. The impact assessment carried out
for that project is defective from a number of points of view
and does not constitute due assessment of the impact under
Article 6(3) of the Habitats Directive. Furthermore, it must also
be noted that the Polish authorities did not submit alternative
solutions to the Wasilków bypass to the Commission and did
not raise the question of compensatory measures with regard to
the area which will be destroyed by that bypass.

The work has already begun; in particular, trees have already
been felled.

The afforestation project to be carried out in the potential
SCI of Pojezierze Sejneńskie as a compensatory measure for
the ecological losses suffered in the areas affected by the
Augustów bypass project not only fails to compensate for the
losses but also implies an adverse impact on the
ecological
potential SCI. The site, which contains 15 types of habitat listed
in Annex I to the Habitats Directive, meets all the ecological
criteria of Annex III for proposal and subsequent classification
as an SCI under that directive. The Commission has reliable
information that two species included in Annexes II and IV to
the abovementioned directive, that is to say the species Pulsatilla
patens and the species Thesium ebracteatum, are present in that
area. Furthermore, the area forms the habitat of six animal
species and six plant species listed in Annex II to the Habitats
Directive, including a priority species, that is to say the wolf.
Part of
(approximately
17 hectares) and the habitats of two plant species listed in
Annex II will be deforested as part of the measures envisaged by
the project investor to compensate for the damage to the habi-
tats caused by the construction of the Augustów bypass.

that priority habitat

the area of

The Polish authorities have confirmed that
they wish to
complete this afforestation project by the end of next June at
the latest. The Commission requests the Court to order that the
work be suspended or that it not begin until delivery of the
judgment in the main proceedings.

(1) OJ L 206, 22.7.1992, p. 7.
(2) Directive 79/409/EEC on the conservation of wild birds (OJ L 103,

25.4.1979, p. 1).

Action brought on 8 May 2007 — Commission of the
European Communities v Republic of Poland

(Case C-227/07)

(2007/C 199/26)

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Shotter and K. Mojzesowicz, Agents)

Defendant: Republic of Poland

Form of order sought

The applicant claims that the Court should:

— declare that, by failing to transpose correctly into national
law Directive 2002/19/EC of the European Parliament and
of the Council of 7 March 2002 on access to, and intercon-
nection of, electronic communications networks and asso-
(Access Directive) (1) and,
ciated facilities
in particular,
Article 4(1) thereof relating to an obligation to negotiate
interconnection with each other, and the first subparagraph
of Article 5(1) thereof relating to the power of the national
regulatory authority to encourage and where appropriate
ensure,
in accordance with the directive's provisions,
adequate access and interconnection, and interoperability of
services, the Republic of Poland failed to fulfil its obligations
under that directive;

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

Directive 2002/19/EC of the European Parliament and of the
Council
(Access Directive) provides that operators of public
communications networks are to have a right and obligation to
negotiate interconnection with each other for the purpose of
providing publicly available electronic communications services,
in order to ensure provision and interoperability of services
throughout the Community. It also requires that the national
regulatory authorities have power
to encourage and where
appropriate to ensure, in accordance with the directive's provi-
interconnection and interoperability of
sions, adequate access,
services.

As regards the Republic of Poland, the period for transposing
that directive expired, under the combined provisions of Arti-
cles 2 and 54 of the Act of Accession, on 30 April 2004.

Under Polish law, all operators of public communications
networks are bound to negotiate access and the national regula-
tory authority may impose a time-limit for such negotiations to
be concluded. In addition, if the parties do not reach an agree-
ment, the national regulatory authority may, at the request of
one of
the parties, adopt a decision which will replace the
contract and thus impose obligations on undertakings irrespec-
tive of their position on the market. The Commission claims
that those provisions of Poland's law on telecommunications do
not comply with the requirements of Article 4(1) and the first
subparagraph of Article 5(1) of the Access Directive.