Case C-232/08: Action brought on 29 May 2008 — Commission of the European Communities v Kingdom of the Netherlands
Date: 2008-05-29
Institutions: Court of Justice
Subjects: European Commission, European standard, Netherlands, action for failure to fulfil an obligation, engine, fishing vessel, technical regulations

15.8.2008

EN

Official Journal of the European Union

C 209/25

Parties to the main proceedings

Action brought on 29 May 2008 — Commission of the
European Communities v Kingdom of the Netherlands

Applicant: Stadt Papenburg

Defendant: Bundesrepublik Deutschland

(Case C-232/08)

(2008/C 209/37)

Language of the case: Dutch

Questions referred

1. Does the first subparagraph of Article 4(2) of Council Direc-
tive 92/43/EEC of 21 May 1992 on the conservation of
natural habitats and of wild fauna and flora (1) allow a
Member State to refuse to agree to the Commission's draft
list of sites of Community importance, in relation to one or
more sites, on grounds other
than nature conservation
grounds?

2. If Question 1 is answered in the affirmative: Do those
grounds include the interests of municipalities and associa-
in particular their plans, planning
tions of municipalities,
intentions and other interests with regard to the further
development of their area?

3. If Questions 1 and 2 are answered in the affirmative: Do the
third recital
in the preamble to Directive 92/43/EEC,
Article 2(3) of the directive or other provisions of Com-
munity law even require that such grounds be taken into
account by the Member States and the Commission when
giving agreement and establishing the list of sites of Com-
munity importance?

4. If Question 3 is answered in the affirmative: Would it be
possible — under Community law — for a municipality
which is affected by the inclusion of a particular site in the
list to claim in legal proceedings after final adoption of the
list that the list infringes Community law, because its inter-
ests were not, or not sufficiently, taken into account?

5. Must ongoing maintenance works in the navigable channels
estuaries, which were definitively authorised under
of
national law before the expiry of the time-limit for transposi-
tion of Directive 92/43/EEC, undergo an assessment of their
implications pursuant to Article 6(3) or (4) of the directive
where they are continued after inclusion of the site in the list
of sites of Community importance?

(1) OJ 1992 L 206, p. 7.

Parties

Applicant: Commission of the European Communities (repre-
sented by: T. van Rijn and K. Banks, acting as Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

— Declare that, by allowing fishing vessels to have a higher
engine power than permitted under Article 29(2) of Regu-
lation (EC) No 850/98 (1), has failed to fulfil its obligations
under Article 23 of Regulation (EC) No 2371 (2) and
Article 2(1) of Regulation (EEC) No 2847/93 (3);

— order Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

The Commission considers that the Netherlands Government
has failed to fulfil its obligations, as it has consciously allows
infringements of the rule regarding the maximum engine power
with which fishing may be carried out in the ‘plaice box’.

First, it is apparent from the information provided by the Neth-
erlands Government that it permits Netherlands ‘Eurokotters’
participating in the private arrangement to satisfy the maximum
permitted engine power of 300 hp only with effect from 1 May
2009. Second, it is apparent from this information that when
monitoring compliance with this rule a margin of tolerance of
12,5 % is applied systematically and therefore penalties are not
imposed on infringements of the maximum permitted engine
power within that margin.

(1) Council Regulation (EC) No 850/98 of 30 March 1998 for the
conservation of fishery resources through technical measures for the
protection of juveniles of marine organisms (OJ 1998 L 125, p. 1).
(2) Council Regulation of 20 December 2002 on the conservation and
sustainable exploitation of fisheries resources under the Common
Fisheries Policy (OJ 2002 L 358, p. 59).

(3) Council Regulation (EEC) No 2847/93 of 12 October 1993 estab-
lishing a control system applicable to the common fisheries policy
(OJ 1993 L 261, p. 1).