Case C-342/08: Action brought on 24 July 2008 — Commission of the European Communities v Kingdom of Belgium
Date: 2008-07-24
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, chemical accident, dangerous substance, emergency aid, penalty

8.11.2008

EN

Official Journal of the European Union

C 285/17

According to the Commission, a scheme of prior authorisation
may, in certain circumstances, be justified on grounds of public
health, but such a scheme would,
in any event, have to
satisfy the criterion of proportionality and comply with the
conditions laid down in the case-law, including those set out in
Case C-24/00 Commission v France [2004] ECR I-1277. In the
present case, a number of those conditions are not satisfied, as
the procedures provided for by that legislation are not easily
accessible, expeditious and susceptible to challenge by way of
legal proceedings in the event of authorisation being refused.

to decisions of the Community judicature, Article 235 EC, the
second paragraph of Article 288 EC and Article 13 of the
European Convention for the Protection of Human Rights and
in paragraph 39 of the
Fundamental Freedoms inasmuch as,
contested order, the Court of First Instance that the commence-
ment of the appellants actions before the national courts neither
suspended nor interrupted the limitation period, whereas in its
earlier decisions, which are now res judicata, the Court encour-
aged it to continue its action before the national courts.

In its second plea, the appellant complains of several errors
committed by the Court of First Instance in assessing the condi-
tions for non-contractual liability concerning distortion of the
facts and the forms of order sought in the appellant's applica-
tion, the second paragraph of Article 288 EC and Article 230 EC
with regard,
in particular to the alleged confirmation of the
Commission's position by the national courts and the assess-
ment made of the period in which the damage was suffered.

In its third and final plea, the appellant invokes an infringement
of Article 4(2) and Article 2(1)(3) of Regulation No 684/92 (1)
inasmuch as the Court of First Instance erroneously accepted the
interpretation and wrongly characterised the
Commission's
the appellant's competitors as
activities of
regular
from
therefore
and
services’
authorisation, whereas they are in fact parallel or temporary
services (Article 2(1)(3)), subject to the same rules as the regular
services operated by the appellant.

‘special
exempt

(Article

4(2))

(1) OJ 1992 L 74, p. 1.

Action brought on 24 July 2008 — Commission of the
European Communities v Kingdom of Belgium

(Case C-342/08)

(2008/C 285/29)

Language of the case: French

Appeal brought on 21 July 2008 by Transports Schiocchet
— Excursions SARL against the order of the Court of First
Instance (Fourth Chamber) delivered on 19 May 2008
in Case T-220/07 Transports Schiocchet — Excursions v
Commission

(Case C-335/08 P)

(2008/C 285/28)

Language of the case: French

Parties

Appellant: Transports Schiocchet — Excursions SARL (repre-
sented by: D. Schönberger, lawyer)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— Annul the order of the Court of First Instance of 19 May

2008;

— Decide the case definitively by granting the applications

sought at first instance;

— In the alternative, remit

the case to the Court of First

Instance;

— Order the Commission to pay the costs in their entirety.

Pleas in law and main arguments

Parties

The appellant puts forward three pleas in law in support of its
appeal.

Applicant: Commission of the European Communities (repre-
sented by: G. Rozet and A. Sipos, acting as Agents)

In its first plea, the appellant claims that the Court of First
Instance infringed the principle of legal certainty which applies

Defendant: Kingdom of Belgium

C 285/18

EN

Official Journal of the European Union

8.11.2008

Form of order sought

Parties to the main proceedings

— declare that, by failing to ensure the elaboration of an
external emergency plan for all the establishments covered
by Article 9 of Council Directive 96/82/EC of 9 Decem-
ber 1996 on the
control of major-accident hazards
involving dangerous substances (1), amended by Directive
2003/105/EC of
the
Council of 16 December 2003 (2), the Kingdom of Belgium
has failed to fulfil its obligations under Article 11(1)(c) of
that directive;

the European Parliament and of

— order Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Commission submits that the elaboration of external emer-
gency plans for measures to be taken outside the establishments
covered by Article 9 of Directive 96/82/EC is a fundamental
requirement of
that directive. The Kingdom of Belgium has
failed to fulfil its obligations under the directive in so far as it
has not drawn up such plans for 59 establishments situated on
its territory while, according to the wording of the directive,
those plans should have been drawn up at the latest 3 years
after the time-limit for transposing the directive had elapsed,
that is on 3 February 2002.

(1) OJ 1997 L 10, p. 13.
(2) Directive 2003/105/EC of

the
Council of 16 December 2003 amending Council Directive
involving
96/82/EC on the control of major-accident hazards
dangerous substances (OJ 1997 L 345, p. 97).

the European Parliament and of

Applicant: Modehuis A. Zwijnenburg BV

Other party: Staatssecretaris van Financiën

Question referred

Must Article 11(1)(a) of [Council] Directive 90/434/EEC (1) of
23 July 1990 be interpreted as meaning that the benefits of that
Directive may be withheld from a tax-payer where a series of
legal transactions is aimed at preventing the levying of a tax
other than the taxes to which the benefits set out in that Direc-
tive relate?

(1) [Council] Directive 90/434/EEC on the common system of taxation
applicable to mergers, divisions, transfers of assets and exchanges of
shares concerning companies of different Member States (OJ 1990
L 225, p. 1).

Action brought on 30 July 2008 — Commission of the
European Communities v French Republic

(Case C-354/08)

(2008/C 285/31)

Language of the case: French

Reference for a preliminary ruling from the Hoge Raad der
Nederlanden (Netherlands)
lodged on 31 July 2008 —
Modehuis A. Zwijnenburg BV, other party: Staatssecretaris
van Financiën

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa and J. Sénéchal, Agents)

(Case C-352/08)

Defendant: French Republic

(2008/C 285/30)

Language of the case: Dutch

Referring court

Form of order sought

— declare that, by providing for priority to the outgoing
licensee in the course of putting out to competitive tender
licences in respect of works using hydraulic energy, in par-
ticular by adopting the provisions of Article 29(3) of decree
No 99/225 of 22 March 1999 relating to the licence and
the declaration of public use of works using hydraulic
energy, the French Republic has failed to fulfil its obligations
under Article 43 EC;

Hoge Raad der Nederlanden

— order the French Republic to pay the costs.