Case C-254/08: 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
Date: 2008-06-16
Institutions: Court of Justice
Subjects: interpretation of the law, national law, polluter pays principle, waste disposal

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

C 209/32

EN

Official Journal of the European Union

15.8.2008

Question referred

The question arising is whether
the national provisions
contained in Article 58 et seq of Legislative Decree No 507 of
1993 and the transitional provisions maintaining them in force,
by virtue of Article 11 of Presidential Decree No 158 of 1999,
as subsequently amended, and Article 1(184) of Law No 296 of
2006, so ensuring the continuation of a system, fiscal in nature,
designed to cover the costs of the waste disposal service and
postponing the introduction of a tariff regime in which the cost
of the service is borne by the persons producing and delivering
the waste, are compatible with the abovementioned Article 15
the Community Directive 75/442/EEC (1) which replaces
of
Directive 91/156/EEC (2) and the principle of ‘the polluter pays’
referred to.

(1) OJ L 194, p. 39.
(2) OJ L 78, p. 32.

Action brought on 17 June 2008 — Commission of the
European Communities v Hellenic Republic

(Case C-259/08)

(2008/C 209/48)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Patakia and D. Recchia)

Defendant: Hellenic Republic

Action brought on 17 June 2008 — Commission of the
European Communities v Italian Republic

Form of order sought

(Case C-257/08)

(2008/C 209/47)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: N. Yerrell and L. Prete, Agents)

Defendant: Italian Republic

Form of order sought

the European Parliament and of

— Declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Directive
2006/22/EC (1) of
the
Council of 15 March 2006 on minimum conditions for the
implementation of Council Regulations (EEC) No 3820/85
and (EEC) No 3821/85 concerning social legislation relating
to road transport activities and repealing Council Directive
88/599/EEC or,
in any event, by failing to communicate
such provisions to the Commission, the Italian Republic has
failed to fulfil its obligations under that directive:

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The deadline for implementing the directive expired on 1 April
2007.

(1) OJ 2006 L 102, p. 35.

The Court is asked to:

— declare that, by failing to take the requisite measures to
transpose fully and/or correctly the requirements resulting
from Article 3(1) and (2), Article 4(1), Article 5 and
Article 8(1) of Council Directive 79/409/EEC (1) of 2 April
1979 on the conservation of wild birds,
the Hellenic
Republic has failed to fulfil its obligations under those provi-
sions;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

1. The Commission has examined the compatibility of

the
measures taken by the Hellenic Republic to transpose Direc-
tive 79/409/EEC. That check showed that certain provisions
of the directive have not been fully and/or correctly trans-
posed.

2. In particular the Commission considers that the Hellenic
transposed Article 3(1) of Directive
Republic has not
79/409/EEC, because it has not
the requisite
taken all
measures to preserve, maintain or re-establish a sufficient
diversity and area of habitats for all the species of birds
referred to in Article 1.

3. The Commission also considers that Article 3(2) of Directive
79/409/EEC has not been fully and/or correctly transposed,
since the transposing measure does not permit review of the
lawfulness of the designation of an area as a special protec-
tion area (SPA), does not contain any provision for the
protection of habitats outside the SPAs but in their vicinity
and also makes no provision as regards re-establishment of
destroyed biotopes and the creation of biotopes, despite their
being important objectives of the directive.