Case C-18/09: Action brought on 14 January 2009 — Commission of the European Communities v Kingdom of Spain
Date: 2009-01-14
Institutions: Court of Justice
Subjects: EU Member State, EU law, European Commission, Spain, action for failure to fulfil an obligation, economic system, harbour installation, provision of services

21.3.2009

EN

Official Journal of the European Union

C 69/27

Action brought on 14 January 2009 — Commission of the
European Communities v Kingdom of Spain

(Case C-18/09)

(2009/C 69/49)

Language of the case: Spanish

Reference for a preliminary ruling from the Högsta
domstolen (Sweden)
lodged on 19 January 2009 —
Djurgården-Lilla Värtans Miljöskyddsförening v AB Fortum
Värme samägt med Stockholms stad

(Case C-24/09)

(2009/C 69/50)

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (repre-
sented by: K. Simonsson and L. Lozano Palacios, acting as
Agents)

Referring court

Högsta domstolen

Defendant: Kingdom of Spain

Parties to the main proceedings

Form of order sought

Applicant: Djurgården-Lilla Värtans Miljöskyddsförening

— declare that, by maintaining in force Ley 48/2003, de
26 noviembre, de regimen económico y de prestación de
servicios de los puertos de interés general (Law 48/2003 of
26 November 2003 on the economic rules and supply of
services for ports of general
in particular
Article 24(5) and Article 27(1), (2) and (4) thereof, which
establish a system of rebates and exemptions for harbour
dues, the Kingdom of Spain has failed to fulfil its obligations
under Community Law (1) and,
in particular, Article 1 of
Council Regulation (EEC) No 4055/86 of 22 December
1986 applying the principle of freedom to provide services
to maritime transport between Member States and between
Member States and third countries;

interest) and,

— order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Spanish law provides for a series of exemptions and rebates
relating to harbour dues. Those exemptions and rebates depend
on the ports of departure or destination of the vessels and have
the consequence that more favourable tariffs are applied, first, to
traffic between the Spanish archipelagos and Ceuta and Melilla
and, second, to traffic between those ports and ports of the
European Union and, third, between ports of
the European
Union. The Commission takes the view that that legislation is
discriminatory.

The Kingdom of Spain, which invoked the particular geographic
situation of the ports concerned, has not justified either the
need for or the proportionality of that measure. Despite having
promised to amend the legislation at
issue, as far as the
Commission is aware, no legislation has been adopted to put an
end to the infringement.

(1) OJ L 378, p. 1.

Defendant: AB Fortum Värme samägt med Stockholms stad

Questions referred

1. Does the provision in Article 10a of Directive 85/337 (1) —
that under certain circumstances the public concerned is to
have access to a review procedure before a court of law or
another independent and impartial body established by law
to challenge the substantive or procedural legality of a deci-
sion — imply that there is also a requirement that the public
concerned is to be entitled to challenge a decision of a court
in planning consent proceedings in a case where the public
concerned has had the opportunity of participating in the
court's examination of the question of planning consent and
of submitting its views to that court?

2. If the answer to Question 1 is affirmative: Are Articles 1(2),
6(4) and 10a of Directive 85/337 to be interpreted as
meaning that different national requirements can be laid
down with regard to the public concerned referred to in Arti-
cles 6(4), on the one hand, and 10a, on the other, with the
result
that a locally established environmental protection
association which has a right to participate in the decision-
making procedures referred to in Article 6(4) in respect of
projects which may have significant effects on the environ-
ment in the area where the association is active does not —
since it has fewer members than the minimum number laid
down in national law — have a right of appeal such as is
referred to in Article 10a of Directive 85/337?

3. Does the provision in Article 15a of Directive 96/61 (2) —
that under certain circumstances the public concerned is to
have access to a review procedure before a court of law or
another independent and impartial body established by law
to challenge the substantive or procedural legality of a deci-
sion — imply that there is a requirement that the public
concerned is to be entitled to challenge a decision of a court
in planning consent proceedings in a case where the public
concerned has had the opportunity of participating in the
court's examination of the question of planning consent and
of submitting its views to that court?