Case C-535/07: Action brought on 30 November 2007 — Commission of the European Communities v Republic of Austria
Date: 2007-11-30
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, bird, environmental protection, protected area, protection of animal life, protection of plant life, wildlife

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Official Journal of the European Union

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2. Contrary to the assessment of the Court of First Instance the
Defendant incorrectly examined the evidence provided in
respect of the acquired distinctiveness for each member state
separately as this apparently contradicts Article 7(3) CTMR
requiring an acquired distnctiveness through use throughout
the Community. What
the Defendant would have been
required to do — instead of assessing the number of
member states — is to look at the provided evidence as a
whole and to assess whether it builds a coherent picture of
sustained use in a sufficiently large geographical area over a
sufficiently long period of time before the filing date.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community Trade Mark (OJ L 11, 14.1.1994, p. 1).

Appeal brought on 22 November 2007 by the Kingdom of
Sweden to the Court of Justice against the judgment deliv-
ered on 12 September 2007 in Case T-36/04: Association
de la presse internationale a.s.b.l. (API) v Commission of
the European Communities

(Case C-514/07 P)

(2008/C 51/54)

the European Parliament and of

2. On the one hand, the Court of First Instance found that,
in accordance with Article 4(2) of Regulation (EC)
No 1049/2001 of
the
Council regarding public access to European Parliament,
Council and Commission documents (1), the institutions are
obliged to assess whether disclosure would specifically and in
a concrete manner harm an interest protected by an excep-
tion. Only if that is the case can an exception form the basis
of a refusal to disclose a document. That examination must
be made in respect of each individual document. The appli-
cant supports that conclusion.

3. Nevertheless, on the other hand, the Court of First Instance
concluded that in precisely that case the Commission was
not obliged to carry out such an examination, by reference
to the fact that there is a general requirement of confidenti-
ality for documents lodged in pending cases until the oral
procedure has taken place in the case. That general require-
ment for confidentiality is based in part on the right to a fair
hearing before an impartial tribunal, in part on the fact that
the Commission is to be able to uphold its interests as a
party to the case. In that regard, the Court of First Instance
the Commission did not make an incorrect
found that
assessment when it refused access to the documents lodged.

4. In the view of the applicant the later ruling is incompatible
with the obligation to examine the question of disclosure by
reference to the contents of the specific document. By its
judgment, the Court of First Instance thus incorrectly applied
Community law.

Language of the case: Swedish

(1) OJ L 145, p. 43.

Parties

Appellant: Kingdom of Sweden (represented by: A. Falk and S.
Johannesson, Legal Advisers)

Other party to the proceedings: Association de la presse internatio-
nale a.s.b.l. (API) by the European Commission

Form of order sought

— Set aside paragraph 2 of the operative part of the judgment
of the Court of First Instance of 12 September 2007 in Case
T-36/04;

— annul the Commission's decision of 20 November 2003 in
its entirety, in accordance with the forms of order sought by
API before the Court of First Instance, and thus also in
respect of the refused access to the pleadings submitted by
the Commission in Case T-209/01 Honeywell v Commission,
Case T-210/01 General Electric v Commission and Case
C-203/03 Commission v Austria, and

— order the Commission to pay the costs.

Pleas in law and main arguments

1. By the judgment under appeal, the Court of First Instance
incorrectly applied Community law by failing to annul the
Commission's decision in its entirety.

Action brought on 30 November 2007 — Commission of
the European Communities v Republic of Austria

(Case C-535/07)

(2008/C 51/55)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: R. Sauer and D. Recchia, Agents)

Defendant: Republic of Austria

Form of order sought

— Declare that, by failing

(a) in accordance with ornithological criteria correctly to
in the Province of
in the Province of
in
suitable areas

designate or delimit
(‘Hansag’
Burgenland and ‘Niedere Tauern’
Steiermark respectively)

the most

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Austria in terms of numbers and size as special protec-
tion areas under Article 4(1) and (2) of Council Directive
79/409/EEC of 2 April 1979 on the conservation of
wild birds, (1) and

(b) to provide legal protection,

in accordance with the
requirements of Article 4(1) and (2) of Directive
79/409/EEC or Article 6(2) in conjunction with Article 7
of Council Directive 92/43/EEC of 21 May 1992 on the
conservation of natural habitats and of wild fauna and
flora, (2) for part of the special protection areas already
designated,

the Republic of Austria has failed to fulfil
its obligations
under Article 4(1) and (2) of Directive 79/409/EEC and
Article 6(2)
in conjunction with Article 7 of Directive
92/43/EEC;

— order Republic of Austria to pay the costs.

Pleas in law and main arguments

Article 4(1) and (2) of Council Directive 79/409/EEC (bird
protection directive) requires the Member States to declare as
special protection areas (SPAs) all those areas which are the
most suitable territories in number and size for the conservation
of the species listed in Annex I and to take similar measures for
the conservation of regularly occurring migratory species not
listed in Annex I to the Directive. An SPA is to be given a legal
protection status that is appropriate,
inter alia, to secure the
survival and reproduction of the species listed in Annex I to the
Directive and the breeding, moulting and wintering of regularly
occurring migratory species not listed in Annex I to the Direc-
tive. Since, under Article 7 of Council Directive 92/43/EEC of
21 May 1992 on the conservation of natural habitats and of
wild fauna and flora (fauna and flora directive), obligations
arising, inter alia, under Article 6(2) of that directive in respect
of special areas of conservation are to replace the obligations
under the first sentence of Article 4(1) of the bird protection
directive, the legal protection status of those areas must also
ensure that there is no deterioration of the natural habitats of
the species for which the areas have been designated and no
significant disturbance of those species.

The Republic of Austria has infringed its obligations under
those Community law provisions by failing to designate the
‘Hansag’ area as an SPA, delimit
the ‘Niedere Tauern’ special
protection area in accordance with the requirements of the bird
protection directive, and provide part of the existing special
protection areas with the legal protection required by the above
provisions.

Although the Republic of Austria has recognised the need to
designate ‘Hansag’ as an SPA and has, on several occasions,
confirmed its intention to do so, it has not complied with its
designation obligation within the period laid down in the
reasoned opinion.

failure to have sufficient regard to the necessary habitat of the
dotterel and the inadequate inclusion of the established habitats
of certain woodland bird species, namely the grey-headed wood-
pecker (picus canus) and the hazel hen (Bonasa bonasia). Although
the Member States enjoy some latitude in the selection and deli-
mitation of SPAs, it is limited by the requirement that the deli-
mitation of those areas must comply with particular ornitholo-
gical criteria laid down in the Directive.
In particular, when
selecting and delimiting an SPA, a Member State is not entitled
to take into account the economic requirements referred to in
Article 2 of the bird protection directive or Article 6(4) of the
fauna and flora directive.

As regards the legal protection status of the protection areas
already designated in Austria, special conservation measures are
necessary for each bird fauna designated in an area that satisfies
the criteria for designation as an SPA, and it is also necessary to
establish with precision the necessary conservation measures
and adapt
them to the specific features and environmental
conditions of the BSG and the species living there. The specific
conservation aims contained in the legal protection instruments
for the purposes of Article 4(1) and (2) of the bird protection
directive and Article 6(2) of the fauna and flora directive for
each bird species in question,
together with the necessary
concrete measures and conditions (prohibitions and require-
ments) for the area should also be binding and given adequate
publicity. After an examination of the rules existing in the indi-
vidual provinces,
it has been found that the legal protection
status does not comply with the above requirements and thus
can not be regarded as adequate when measured against the
provisions of the bird protection directive and the fauna and
flora directive.

(1) OJ 1979 L 103, p. 1.
(2) OJ 1992 L 206, p. 7.

Action brought on 30 November 2007 — Commission of
the European Communities v Federal Republic of Germany

(Case C-536/07)

(2008/C 51/56)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: D. Kukovec and R. Sauer, Agents)

The failure to delimit the ‘Niedere Tauern’ area in accordance with
the requirements of the bird protection directive relates to the

Defendant: Federal Republic of Germany