Case C-259/08: Action brought on 17 June 2008 — Commission of the European Communities v Hellenic Republic
Date: 2008-06-17
Institutions: Court of Justice
Subjects: European Commission, Greece, action for failure to fulfil an obligation, biotope, bird, national implementing measure, protected area, protected species, protection of animal life

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.

15.8.2008

EN

Official Journal of the European Union

C 209/33

4. The Commission maintains in addition that Article 4(1) of
Directive 79/409/EEC has not been transposed correctly
because no formal procedure for designating areas as SPAs
has been provided for, there is no express reference and link
between the species in Annex I and the requirement to desig-
nate SPAs and there is no reference to the requirement to
take into account trends and variations in population levels
of protected species.

5. The Commission then finds that Article 5 of Directive
79/409/EEC has not been transposed fully and correctly
because the Greek legislation contains no general require-
ment of species protection as laid down by the directive but
is oriented towards hunting. Furthermore, the prohibition of
deliberate killing of protected species and deliberate taking of
their eggs has not been transposed.

6. Lastly, the Commission considers that Article 8(1) of Direc-
tive 79/4409/EEC has not been transposed correctly, because
in the Greek legislation there is no general prohibition of the
use of all means, arrangements or methods used for the
large-scale or non-selective capture or killing of birds or
capable of causing the local disappearance of a species.

7. The Commission accordingly considers that

the Hellenic
Republic has not
transposed fully and/or correctly the
requirements resulting from Articles 3(1) and (2), 4(1), 5
and 8(1) of Directive 79/409/EEC on the conservation of
wild birds.

(1) OJ L 103 of 25.4.1979, p. 1.

Question referred

Should Article 62(1) and (2)(a) of the Treaty Establishing the
European Community and Articles 5, 11 and 13 of Regulation
(EC) No 562/2006 (1) of the European Parliament and of the
Council of 15 March 2006 establishing a Community Code on
the rules governing the movement of persons across borders
(Schengen Borders Code) be interpreted as precluding national
legislation, and the case-law which interprets it, which permits
the substitution of the expulsion of any ‘third country national’
who does not have documentation authorising him to enter and
remain in the territory of the European Union by the imposition
of a fine?

(1) OJ L 105, p. 1.

Reference for a preliminary ruling from the Østre Landsret
(Eastern Regional Court) (Denmark) lodged on 19 June
2008 — CopyGene A/S v Skatteministeriet

(Case C-262/08)

(2008/C 209/50)

Language of the case: Danish

Reference for a preliminary ruling from the Tribunal
Superior de Justicia de Murcia (Spain) lodged on 19 June
2008 — María Julia Zurita García v Delegado del Gobierno
en la Región de Murcia

(Case C-261/08)

(2008/C 209/49)

Language of the case: Spanish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: CopyGene A/S

Defendant: Skatteministeriet

Questions referred

Referring court

Tribunal Superior de Justicia de Murcia

Parties to the main proceedings

Applicant: María Julia Zurita García

Defendant: Delegado del Gobierno en la Región de Murcia

1. Is the term activity ‘closely related’

to hospital care in
Article 13A(1)(b) of the Sixth Directive (1) to be interpreted
as implying a temporal requirement so that the hospital care
to which the service is closely related must exist or be specifi-
cally performed, commenced or envisaged, or is it sufficient
that the service will potentially be closely related to possible,
but as yet non-existent or undetermined future hospital care,
so that the services supplied by a stem cell bank, consisting
in the collection,
transportation, analysis and storage of
umbilical cord blood from newborns for autologous use, are
covered by it?

In that connection, is it relevant that the services described
cannot be performed at a later time than the time of
delivery?