Case C-249/08: Action brought on 10 June 2008 — Commission of the European Communities v Italian Republic
Date: 2008-06-10
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, conservation of fish stocks, fishing controls, fishing net, fishing regulations

C 209/30

EN

Official Journal of the European Union

15.8.2008

Pleas in law and main arguments

By this action the Commission asks the Court to find that the
Hellenic Republic has failed to fulfil
its obligations under
Article 4(2)(a) and (c), Article 5(2)(c), Article 6(2)(b) and Arti-
cles 10, 11, 12, 13, 14, 15, 17, 18 and 26 of Regulation (EC)
No 1774/2002 of the European Parliament and of the Council
of 3 October 2002 laying down health rules concerning animal
by-products not intended for human consumption (‘the animal
It should be noted that this action
by-products regulation’).
concerns two sets of infringement proceedings (Infringements
2001/5217 and 2006/2221) which arose from breach of the
Hellenic Republic's obligations under specific articles of that
regulation.

apply the provisions of the by-products regulation, in particular
as regards the approval of waste processing plants, the FVO
inspectors repeatedly found, on-the-spot and until April 2007,
when the last fact-finding trip took place, that the Greek autho-
rities had not taken the requisite action to comply with the obli-
gations incumbent on them under the above-mentioned articles
of the by-products regulation.

It should also be pointed out that the non-implementation, or
inadequate implementation, of the above-mentioned articles is
due, to a large extent, to the ineffective coordination of the
competent authorities at the level of the prefectural administra-
tion. Furthermore, as is clear from the response of the Greek
authorities to the findings set out in the FVO's reports, the level
of the controls carried out by the competent authorities and of
the penalties imposed by the national legislation do not effec-
tively ensure the effective application of the by-products regu-
lation.

(1) OJ L 273 of 10.10.2002, p. 1.

In particular the regulation states that once animal waste is
collected, transported and identified without undue delay,
it
must, inter alia, be disposed of as waste, having been processed
in the ways provided for in the Regulation in accordance with
the category to which the waste belongs (Articles 4(2)(c), 5(2)(c)
and 6(2)(b)). Procedures are also laid down for the disposal of
specified risk material by incineration (Article 4(2)(a)). Further,
the animal by-products regulation lays down the conditions
governing the approval of waste processing plants, intermediate,
storage, incineration and co-incineration plants, Category 1 and
Category 2 processing plants, Category 2 and Category 3 oleo-
chemical
plants
plants
(Articles 10-15). Similarly, the animal by-products regulation
lays down the conditions governing the approval by the compe-
tent authorities of Category 3 material processing plants and the
approval of petfood plants and technical plants (Articles 17-18).
In addition, in accordance with the regulation, the competent
authority must carry out at regular intervals inspections and
supervision to ascertain that
the regulation's provisions are
being observed, on the basis of various criteria which are laid
down, and to take the appropriate action in the case of non-
compliance (Article 26).

composting

plants,

biogas

and

On the basis of a large number of reports drawn up by the
Commission's Food and Veterinary Office (FVO), the Commis-
sion points out that neither at the end of the time-limits laid
down in the reasoned opinion and in the supplementary
reasoned opinion nor after
those dates had the Hellenic
Republic taken all the requisite measures to correct the infringe-
ments with which it was charged and consequently to comply
with its obligations under the above-mentioned articles of the
by-products regulation.

Since 2004 the FVO has carried out a number of fact-finding
trips in Greece to ascertain what defects there are in the applica-
the by-products regulation. Despite ascertaining that
tion of
there had been some progress following the advice of the FVO
and the adoption of specific legislation in October 2006 which
aimed to introduce the requisite administrative measures to

Action brought on 10 June 2008 — Commission of the
European Communities v Italian Republic

(Case C-249/08)

(2008/C 209/45)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: K. Banks and C. Cattabriga, Agents)

Defendant: Italian Republic

Form of order sought

— Declare that:

— by failing to provide appropriate measures

the
control, inspection and surveillance of fishing activities
within its territory and within maritime waters subject
to its sovereignty or
in particular with
regard to compliance with the provisions governing the
retention on board and use of drift-nets, and

jurisdiction,

for

15.8.2008

EN

Official Journal of the European Union

C 209/31

— by failing to comply sufficiently with its obligation to
ensure that appropriate measures are taken against those
responsible for infringements of the Community legisla-
tion on the retention on board and use of drift nets, in
particular by imposing dissuasive penalties on those
persons,

the Italian Republic has failed to fulfil its obligations under
Article 1(1) of Council Regulation (EEC) No 2241/87 (1) of
23 July 1987 establishing certain control measures for
fishing activities and Article 2(1) and Article 31(1) and (2)
of Council Regulation (EEC) No 2847/93 (2) of 12 October
system applicable to the
1993 establishing a control
common fisheries policy;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

1. Since it was introduced in 1992, the prohibition on retaining
on board and using drift-nets of a length greater than 2.5 Km
and, since 2001, drift-nets of any length, has been systemati-
cally infringed on a massive scale by the Italian fishing fleet.

2. According to the Commission, the extent and seriousness of
the situation are directly attributable to the inefficiencies in
the Italian system for monitoring compliance with that
prohibition and the inadequacy of
the penalties imposed
under Italian legislation for infringement of that prohibition.

3. In that connection, the Commission observes that the super-
vision of the use of drift-nets is conducted by numerous
organisations which are competing with each other and in
such a way that other tasks entrusted to them take prece-
dence over
supervision, which is, moreover, not
adequately coordinated. The lack of human resources, time
and the necessary means prevents effective control being
carried out.

that

that

4. Adequate strategic programming and planning for

the
control of the use of drift-nets is also lacking. The Commis-
sion observes
carefully
programmed on the basis of specific risk factors and a
comprehensive, integrated and rational strategy. There should
also be a greater focus on certain periods of the year and on
specific regions and control posts. At present, however, no
such action is being taken by the Italian authorities.

should be

controls

the

5. The authorities responsible for surveillance of the use of
drift-nets do not have access to information on the location
of fishing vessels gathered by the satellite vessel monitoring
in Article 3 of Regulation
system (VMS) provided for
No 2847/93. It is apparent from an investigation carried out
by the Commission that a significant number of
fishing
vessels are still not equipped with the satellite-tracking
devices necessary for the proper functioning of the VMS. As
the computerisation of
regards
required
logbooks,
under Regulation No 2847/93 and, a fortiori,
the cross-
analysis of those data with the information collected by the
VMS, are far from being fully implemented.

landing declarations and sales notes

the collection of data,

no more efficient is their prevention of infringements of
Community provisions on the retention and use of such
nets.

7. In that connection, the Commission observes, first of all,
that, contrary to Article 9a of Regulation No 3094/86 (3)
and the measures which subsequently repeated and expanded
the content of that provision, the Italian legislation in force
governing penalties prohibits, essentially, only the use or
attempted use of drift-nets but not their simple retention on
board.

8. Secondly, when it is found that an infringement of the prohi-
bition on the use of drift-nets has actually occurred, it is not
duly reported by the local surveillance authorities to the
competent authorities, principally due to existing social pres-
sures, and it is not in any event effectively pursued and pena-
lised. The number and range of penalties imposed is, in fact,
derisory.

9. The Commission therefore considers that it has been amply
demonstrated that the system of controls and penalties put
in place in Italy to ensure compliance with the Community
provisions on drift-nets
the
purposes of
securing compliance with the obligations
imposed on the Member States by Article 1(1) of Regulation
No 2241/87 and Article 2(1) and Article 31(1) and (2) of
Regulation No 2847/93.

is wholly inadequate

for

(1) OJ 1987 L 207, p. 1.
(2) OJ 1993 L 261, p. 1.
(3) Council Regulation (EEC) No 3094/86 of 7 October 1986 laying
fishery

down certain technical measures for the conservation of
resources (OJ 1986 L 288, p. 1).

Reference for a preliminary ruling from the Tribunale
Amministrativo Regionale della Campania (Italy) lodged on
16 June 2008 — Futura Immobiliare Srl Hotel Futura and
Others v Comune di Casoria

(Case C-254/08)

(2008/C 209/46)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale della Campania

Parties to the main proceedings

Applicant: Futura Immobiliare Srl Hotel Futura and Others

6. If the surveillance of the use of drift-nets carried out by the
Italian authorities appears to be wholly unsatisfactory, then

Defendant: Comune di Casoria