Case C-219/07: Judgment of the Court (Third Chamber) of 19 June 2008 (reference for a preliminary ruling from the Raad van State van België (Belgium)) — Nationale Raad van Dierenkwekers en Liefhebbers VZW, Andibel VZW v Belgische Staat (Article 30 EC — Regulation (EC) No 338/97 — Protection of species of wild fauna and flora — Prohibition on holding mammals of certain species referred to by that regulation or not covered by it — Holding permitted in other Member States)
Date: 2008-06-19
Institutions: Court of Justice
Subjects: animal welfare, export monitoring, interpretation of the law, marketing, protected species, protection of animal life, trade restriction, wild mammal

15.8.2008

EN

Official Journal of the European Union

C 209/11

Operative part of the judgment

1. A substance such as that at issue in the main proceedings, namely
heavy fuel oil sold as a combustible fuel, does not constitute waste
within the meaning of Council Directive 75/442/EEC of 15 July
1975 on waste, as amended by Commission Decision 96/350/EC
of 24 May 1996, where it is exploited or marketed on economic-
ally advantageous terms and is capable of actually being used as a
fuel without requiring prior processing.

2. Hydrocarbons accidentally spilled at sea following a shipwreck,
mixed with water and sediment and drifting along the coast of a
Member State until being washed up on that coast, constitute
waste within the meaning of Article 1(a) of Directive 75/442, as
amended by Decision 96/350, where they are no longer capable of
being exploited or marketed without prior processing.

Judgment of the Court (Third Chamber) of 19 June 2008
(reference for a preliminary ruling from the Raad van
State van België (Belgium)) — Nationale Raad van
Dierenkwekers en Liefhebbers VZW, Andibel VZW v
Belgische Staat

(Case C-219/07) (1)

(Article 30 EC — Regulation (EC) No 338/97 — Protection
of species of wild fauna and flora — Prohibition on holding
mammals of certain species referred to by that regulation or
not covered by it — Holding permitted in other Member
States)

(2008/C 209/15)

Language of the case: Dutch

3. For the purposes of applying Article 15 of Directive 75/442, as
amended by Decision 96/350, to the accidental spillage of hydro-
carbons at sea causing pollution of the coastline of a Member
State:

Referring court

Raad van State van België

— the national court may regard the seller of those hydrocarbons
and charterer of the ship carrying them as a producer of that
waste within the meaning of Article 1(b) of Directive 75/442,
as amended by Decision 96/350, and thereby as a ‘previous
holder’ for the purposes of applying the first part of the second
indent of Article 15 of that directive, if that court, in the light
of the elements which it alone is in a position to assess, reaches
the conclusion that that seller-charterer contributed to the risk
that the pollution caused by the shipwreck would occur, in par-
ticular if he failed to take measures to prevent such an incident,
such as measures concerning the choice of ship;

— if it happens that the cost of disposing of the waste produced
by an accidental spillage of hydrocarbons at sea is not borne by
the International Oil Pollution Compensation Fund, or cannot
be borne because the ceiling for compensation for that accident
has been reached, and that, in accordance with the limitations
and/or exemptions of liability laid down, the national law of a
Member State,
including the law derived from international
agreements, prevents that cost from being borne by the ship-
owner and/or the charterer, even though they are to be regarded
as ‘holders’ within the meaning of Article 1(c) of Directive
75/442, as amended by Decision 96/350, such a national
law will then, in order to ensure that Article 15 of that direc-
tive is correctly transposed, have to make provision for that cost
to be borne by the producer of the product from which the
waste thus spread came. In accordance with the ‘polluter pays’
principle, however, such a producer cannot be liable to bear
that cost unless he has contributed by his conduct to the risk
that the pollution caused by the shipwreck will occur.

(1) OJ C 129, 9.6.2007.

Parties to the main proceedings

Applicants: Nationale Raad van Dierenkwekers en Liefhebbers
VZW, Andibel VZW

Defendant: Belgische Staat

Re:

Reference for a preliminary ruling — Raad van State van België
(Belgium) — Interpretation of Article 30 EC and of Council
Regulation (EC) No 338/97 of 9 December 1996 on the protec-
tion of species of wild fauna and flora by regulating trade
therein (OJ 1996 L 61, p. 1) — National legislation providing a
list of
species which may be held in the Member State
concerned, whose effect is to rule out the holding of the species
referred to in Annexes B, C or D to the regulation and of those
not covered by the regulation — Holding authorised in other
Member States whose legislation complies with the regulation

Operative part of the judgment

Articles 28 EC and 30 EC, read separately or in conjunction with
Council Regulation (EC) No 338/97 of 9 December 1996 on the
protection of species of wild fauna and flora by regulating trade
therein, do not preclude national legislation, such as that at issue in
the main proceedings, under which a prohibition on importing,
holding or trading in mammals belonging to species other than those
expressly referred to in that legislation applies to species of mammals
which are not included in Annex A to that regulation, if the protection
of or compliance with the interests and requirements referred to in
paragraphs 27 to 29 of this judgment cannot be secured just as effec-
tively by measures which obstruct intra-Community trade to a lesser
extent.

C 209/12

EN

Official Journal of the European Union

15.8.2008

It is for the national court to determine:

Re:

— whether the drawing up of the national list of species of mammals
which may be held and subsequent amendments to that list are
based on objective and non-discriminatory criteria;

— whether a procedure enabling interested parties to have species of
mammals included in that list is provided for, readily accessible
and can be completed within a reasonable time, and whether,
where there is a refusal to include a species, it being obligatory to
state the reasons for that refusal, that refusal decision is open to
challenge before the courts;

— whether applications

to obtain the inclusion of a species of
mammal in that list or to obtain individual derogations to hold
specimens of species not included in that list may be refused by the
competent administrative authorities only if the holding of speci-
mens of the species concerned poses a genuine risk to the protection
of the abovementioned interests and requirements; and

Failure of a Member State to fulfil its obligations — Incorrect
transposition [of Articles 8, 12 and 13] of Directive
2002/22/EC of the European Parliament and of the Council of
7 March 2002 on universal service and users' rights relating to
electronic communications networks and services (‘Universal
Service Directive’) (OJ 2002 L 108, p. 51) — Obligation to use
an efficient, objective,
transparent and non-discriminatory
mechanism to designate undertakings entrusted with the provi-
sion of universal service — National
legislation immediately
excluding economic operators which are not capable of ensuring
the provision of that service throughout the national territory

Operative part of the judgment

The Court:

— whether conditions for

list,

in that

such as

referred to

the holding of specimens of mammals
not
in
Article 3bis(2)(3)(b) and (6) of the Law of 14 August 1986
concerning the protection and welfare of animals, as amended by
the Law of 4 May 1995, are objectively justified and do not go
beyond what is necessary to achieve the objective pursued by the
national legislation as a whole.

those

out

set

1. Declares that, by transposing into national law in the way it did
the undertakings
concerning the designation of
the provisions
capable of guaranteeing the provision of universal service,
the
French Republic failed to fulfil its obligations under Articles 8(2),
12 and 13 and Annex IV of Directive 2002/22/EC of the Euro-
pean Parliament and of the Council of 7 March 2002 on universal
communications
service and users'
networks and services (‘Universal Service Directive’).

relating to electronic

rights

(1) OJ C 155, 7.7.2007.

2. Orders the French Republic to bear the costs.

(1) OJ C 211 of 8.9.2007.

Judgment of the Court (Fourth Chamber) of 19 June 2008
— Commission of the European Communities v French
Republic

(Case C-220/07) (1)

(Failure of a Member State to fulfil its obligations — Directive
2002/22/EC — Electronic communications — Designation of
the undertakings entrusted with the provision of universal
service — Incorrect transposition)

(2008/C 209/16)

Language of the case: French

Judgment of the Court (Eighth Chamber) of 24 June 2008
— Commission of the European Communities v Grand
Duchy of Luxembourg

(Case C-272/07) (1)

(Public procurement — Directive 2004/18/EC — Coordination
of procedures for the award of public works contracts, public
supply contracts and public service contracts — Failure to
implement within the prescribed time-limit)

(2008/C 209/17)

Language of the case: French

Parties

Parties

Applicant: Commission of the European Communities (repre-
sented by: J.-P. Keppenne and M. Shotter, Agents)

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

Defendant: French Republic (represented by: G. de Bergues and
B. Messmer, Agents)

Defendant: Grand Duchy of Luxembourg (represented by: C.
Schiltz, Agent)