Case C-354/08: Action brought on 30 July 2008 — Commission of the European Communities v French Republic
Date: 2008-07-30
Institutions: Court of Justice
Subjects: European Commission, France, action for failure to fulfil an obligation, competition law, concessionaire, hydraulic energy, legislation, publication

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.

8.11.2008

EN

Official Journal of the European Union

C 285/19

Pleas in law and main arguments

Questions referred

The Commission claims that granting priority to the outgoing
licensee, upon renewal and granting of licences in respect of
infringes the principle of non-
works using hydraulic energy,
discrimination and hinders
freedom of establishment. By
favouring companies which have a licence and which are there-
fore established in France, French legislation makes the establish-
ment of companies set up in other Member States more diffi-
cult.

Moreover, the French authorities did not rely on the derogations
provided for in Articles 45 and 46 of the Treaty or overriding
reasons in the public interest in order to justify the measure in
question which was, in any event, disproportionate in the light
of the objective pursued. Accordingly, financial charges borne
by the outgoing licensee may, for example, be offset by other
obligations imposed on all new competitors.

Reference for a preliminary ruling from the Raad van State
(Netherlands)
lodged on 4 August 2008 — Stichting
Greenpeace Nederland v Minister van Volkshuisvesting,
Ruimtelijke Ordening en Milieubeheer, other party: Pioneer
Hi-Bred Northern Europe Sales Division

(Case C-359/08)

(2008/C 285/32)

1. Must the location of release of genetically modified organ-
isms which cannot be regarded as confidential by virtue of
Article 25(4) of Directive 2001/18/EC (1), in view inter alia of
the objective and general scheme of that Directive, be inter-
preted as referring to the parcel of land in the land register,
or is it sufficient for a larger geographical area to be indi-
cated?

2.

(a) If the indication of a larger geographical area is sufficient,
what circumstances may be included when it is decided
how the area is to be indicated?

(b) Is Directive 2003/4/EC (2) relevant in the determination

of the size of the area to be indicated?

(c) Does an area twenty times larger than the individual trial

fields satisfy the principle of proportionality?

3. Is the principle of proportionality satisfied if, pursuant to the
policy revised on 17 July 2008, a general indication of areas
one hundred times the individual trial fields is chosen?

4. If only a reference to an entry in the land register is suffi-
cient, can, despite the rule laid down in Article 25(4) of
Directive 2001/18/EC, a justification for treating confiden-
tially information on the precise location of release none the
less lie in the circumstances defined in Article 4(2) of Direc-
tive 2003/4/EC?

Language of the case: Dutch

5.

(a) Does Article 4(2) of Directive 2003/4/EC contain an

exhaustive list of justifications?

Referring court

Raad van State

Parties to the main proceedings

Applicant: Stichting Greenpeace Nederland

(b) If so, can the protection of firms, including the persons
and products therein, and the prevention of sabotage for
the sake of the biotechnological development climate in
the Netherlands be subsumed under one of the justifica-
tions set out in Article 4(2) of Directive 2003/4/EC?

6. If the answers to Questions 5(a) and (b) are in the affirma-
tive, is the designation of an area twenty or one hundred
times the size of the trial field, in the light of Article 4(2)(h)
of Directive 2003/4/EC, proportionate having regard to the
protection of private interests (protection of firms, including
the persons and products therein), and of public interests
(prevention of sabotage for the sake of the biotechnological
development climate in the Netherlands)?

Defendant: Minister van Volkshuisvesting, Ruimtelijke Ordening
en Milieubeheer

7.

Other party: Pioneer Hi-Bred Northern Europe Sales Division

(a) If the answer to Question 5(a)

is in the negative, do
including the persons and
the protection of
products therein, and the prevention of sabotage for the
sake of the biotechnological development climate in the
Netherlands form a permissible justification?

firms,