CELEX: C2001/259/02
Language: en
Date: 2001-09-15 00:00:00
Title: Case C-296/01: Action brought on 25 July 2001 by the Commission of the European Communities against the French Republic

15.9.2001             EN                   Official Journal of the European Communities                                          C 259/1
                                                                   I
                                                             (Information)
                                                COURT OF JUSTICE
                                                         COURT OF JUSTICE
Reference for a preliminary ruling by the Tribunale                    of such values, as demonstrated by the ordinary procedure
Amministrativo Regionale, Lazio, by order of 18 April                  governed by Article 6 et seq. of the same regulation [and] that
2001 in the case of Monsanto Agricoltura Italia SpA,                   the said simplified procedure is capable of being applied,
Monsanto Europe S.A., Novartis Seeds SpA, Novartis                     merely because of the need to expedite and simplify adminis-
Seeds AG, Pioneer Hi Bred Italia SpA, Pioneer Overseas                 trative action, for the placing on the market of foods and food
Corporation, Assobiotec — Associazione Nazionale per                   ingredients in respect of which, since their composition
lo Svilupo delle Biotecnologie against Office of the                   includes transgenic proteins, information is not available
President of the Council of Ministers, Ministry of Health,             covering all the implications for the health of consumers, they
Council of Ministers, President of the Council of Minis-               not having hitherto been used for human consumption to a
ters, Ministry for Community Policies, Istituto Superiore              significant degree, and regarding interaction with the environ-
           di Sanità, Consiglio Superiore di Sanità                    ment, as may be inferred in general from the … Recommen-
                                                                       dation of [21 July] 1997?
                       (Case C-236/01)
                                                                       (1) OJ L 43 of 14.2.1997, p. 1.
                       (2001/C 259/01)
Reference has been made to the Court of Justice of the
European Communities by order of 18 April 2001 by
the Tribunale Amministrativo Regionale del Lazio (Regional             Action brought on 25 July 2001 by the Commission of
Administrative Court), Lazio, which was received at the Court           the European Communities against the French Republic
Registry on 19 June 2001, for a preliminary ruling in the case
of Monsanto Agricoltura Italia SpA, Monsanto Europe S.A.,                                       (Case C-296/01)
Novartis Seeds SpA, Novartis Seeds AG, Pioneer Hi Bred
Italia SpA, Pioneer Overseas Corporation, Assobiotec —
Associazione Nazionale per lo Svilupo delle Biotecnologie                                       (2001/C 259/02)
against Office of the President of the Council of Ministers,
Ministry of Health, Council of Ministers, President of the
Council of Ministers, Ministry for Community Policies, Istituto        An action against the French Republic was brought before the
Superiore di Sanità, Consiglio Superiore di Sanità, on the             Court of Justice of the European Communities on 25 July
following questions:                                                   2001 by the Commission of the European Communities,
                                                                       represented by G. zur Hausen, action as Agent, and M.H. van
                                                                       der Woude and V. Landes, avocats, with an address for service
                                                                       in Luxembourg.
Is Article 5 of Regulation [No 258/97/EC (1) valid in relation
to] Articles [153 and 174 EC] and the principles of pro-
portionality and reasonableness [despite the fact that] it does        The Commission of the European Communities claims that
not provide for complete assessment of the safety of foods and         the Court should:
food ingredients in relation to risks to human health and the
environment and does not guarantee the informed partici-               —     declare that, by failing the transpose correctly or com-
pation of the Member States and the appropriate scientific                   pletely Articles 5(1), (2), (3) and (4), 6(2) and (5), 9(3),
bodies whose involvement is conductive to the safeguarding                   11(1), (2), (3) and (6), 12(3) and (4) and 19(2), (3) and (4)
 ---pagebreak--- C 259/2                 EN                    Official Journal of the European Communities                                     15.9.2001
      of Directive 90/220/EEC of 23 April 1990, as amended,              —    contrary to the argument put forward by the French
      on the deliberate release into the environment of geneti-               authorities, Article 6(5) of the directive must be the
      cally modified organisms (1), the French Republic has                   subject of a measure transposing it even as regards sectors
      failed to fulfil its obligations under that directive and               where the competent national authority is part of the
      Article 249 of the EC Treaty;                                           State administration and not a public institution;
—     order the French Republic to pay the costs.
                                                                         —    the information available to the Commission does not
                                                                              demonstrate that procedures or organisational rules
                                                                              enabling Article 9(3) of the directive to be duly applied
                                                                              have been enacted in French law;
Pleas in law and main arguments
                                                                         —    Article 11(1) and Annexes II and III have been only partly
                                                                              transposed;
The obligation on a Member State to take all the measures
necessary to achieve the results prescribed by a directive is a
binding obligation. The period laid down in Article 23 of
Directive 90/220/EEC expired on 23 October 1991 and                      —    with the exception of two sector-based orders, the
transposition is still incomplete so far as concerns the following            provisions referred to by the French authorities as
points:                                                                       transposing Article 11(2) and (3) of the directive do not
                                                                              set out with the necessary precision the matters which
                                                                              the notifier must include in his notification dossier;
—     the reagents sector is not covered by any of the numerous
      measures for transposing the directive; in particular, it is
      excluded from the scope of Decree 96-850 which appears             —    the obligation resulting from the first indent of
      designed to sweep up the cases not covered by specific                  Article 11(6) of the directive is not reproduced expressly
      legislative measures;                                                   in any of the sector-based decrees. Informing the com-
                                                                              petent authority and revising the information and con-
                                                                              ditions are referred to by the directive as complementary,
—     Article 11 of Law 92-654 which makes any deliberate                     but separate, obligations; they must accordingly be trans-
      release subject to prior authorization has not been                     posed expressly and separately;
      supplemented, for all sectors, by legally binding pro-
      visions concerning the dossier to be submitted (incom-
      plete transposition of Article 5(2) of the directive and
      Annex II thereto as amended);                                      —    Article 12(3) and (4) of the directive sets out the details
                                                                              of a procedure under which the national administrative
                                                                              bodies are empowered to communicate with the Com-
                                                                              mission. It is thus necessary for national law to set out
—     while Article 5(3) of the directive certainly gives the
                                                                              for those authorities the legal framework within which
      competent authority some ‘latitude’ when authorizing
                                                                              they operate;
      release, that discretion does not belong to the Member
      States when transposing the directive but to the com-
      petent authorities at the time of notification. In order for
      those authorities to be able to have the option offered by         —    the Commission has not received notification of any
      Article 5(3), it is necessary for that provision to be                  measure intended to transpose Article 13(2) and (4) of
      transposed into national law;                                           the directive;
—     Article 5(4) of the directive has not been transposed,
                                                                         —    Article 19(2) of the directive has not been transposed by
      except so far as concerns certain orders. In referring to
                                                                              provisions capable of creating a situation that is suf-
      orders which are being prepared, the French authorities
                                                                              ficiently precise, clear and transparent to enable individ-
      admit the failure to transpose the directive;
                                                                              uals to be aware of their rights and obligations. Article 21
                                                                              of Law 92-654 fails to require the notifier to provide
                                                                              verifiable justification in support of a request for confi-
—     the decrees transposing the directive provide that author-              dentiality;
      ization is deemed to be refused if there has been no
      decision on expiry of the period of 90 days laid down in
      Article 6(2) of the directive. In that case, reasons are
      clearly not given for the refusal by the competent                 —    neither Law 92-654 nor the sector-based decrees (with the
      authority. Even supposing that the reasons for refusal are              exception of Decree 94-359 relating to plant protection
      disclosed to the notifier subsequently, the time-limit of               products) lay down the obligations, prescribed by
      90 days laid down by the directive cannot complied with                 Article 19(3) of the directive, to consult the notifier and
      in that way;                                                            to inform him once a decision has been taken;
 ---pagebreak--- 15.9.2001              EN                   Official Journal of the European Communities                                        C 259/3
—     since the French authorities have intended to implement          The Commission also considers that the enactment of a
      the requirements flowing from Article 19(4) of the               transitional period after the date of expiry of the time-limit for
      directive by means of a ‘public information sheet’, it is        transposition of the directive is contrary to the obligations
      imperative for the sheet to include all the matters              under that directive.
      mentioned in that provision as incapable of being kept
      confidential.
                                                                       (1) OJ L 175, 5.7.1985, p. 40.
(1) OJ L 117, 8.5.1990, p. 15.
                                                                       Action brought on 27 July 2001 by the Commission of
                                                                       the European Communities against the Hellenic Republic
Action brought on 27 July 2001 by the Commission of
the European Communities against the Hellenic Republic
                                                                                               (Case C-302/01)
                         (Case C-301/01)
                                                                                               (2001/C 259/04)
                         (2001/C 259/03)
                                                                       An action against the Hellenic Republic was brought before
                                                                       the Court of Justice of the European Communities on 27 July
An action against the Hellenic Republic was brought before             2001 by the Commission of the European Communities,
the Court of Justice of the European Communities on 27 July            represented by Gotz zur Hausen, Legal Adviser, and Panos
2001 by the Commission of the European Communities,                    Panagiotopoulos, a national civil servant on secondment to its
represented by Gotz zur Hausen, Legal Adviser, and Panos               Legal Service.
Panagiotopoulos, a national civil servant on secondment to its
Legal Service.
                                                                       The Commission claims that the Court should:
The Commission claims that the Court should:                           —     declare that, by failing to take the necessary measures to
                                                                             ensure that waste is recovered or disposed of in the
—     declare that, by restricting the extent of public infor-               commune of Epitalio without endangering human health,
      mation to the environmental impact study, laying down                  without risk to water, air, soil and plants and animals and
      a period for public consultation which cannot exceed                   without causing a nuisance through noise or odours, by
      15 days and providing for a transitional period which                  granting a permit for the operation of a waste disposal
      expired in October 1994, the Hellenic Republic has failed              (landfill) site which does not contain the necessary
      to fulfil its obligations under Articles 6 (2) and 12 of               information and by allowing that facility to operate
      Council Directive 85/337/EEC (1) of 27 June 1985 on the                without prior approval of an environmental impact study,
      assessment of the effects of certain public and private                the Hellenic Republic has failed to fulfil its obligations
      projects on the environment;                                           under Articles 4 and 9 of Council Directive
                                                                             75/442/EEC (1) on waste, as amended by Directive
—     order the Hellenic Republic to pay the costs.                          91/156/EEC, and Article 4 (2) of Council Directive
                                                                             85/337/EEC (2) of 27 June 1985 on the assessment of the
                                                                             effects of certain public and private projects on the
                                                                             environment;
Pleas in law and main arguments
                                                                       —     order the Hellenic Republic to pay the costs.
Article 6 (2) of Directive 85/337/EEC on the assessment of the
effects of certain public and private projects on the environ-
ment provides that all the information gathered by the                 Pleas in law and main arguments
developer is to be made available to the public. Article 2 (2) of
Joint Ministerial Decision 75308/5512/90 provides for public
access to the environmental impact study only and to no other          Article 4 of Directive 75/442/EEC, as amended, provides that
information. The directive also provides that the Member               the Member States are to take the necessary measures to
States are to ensure that the public concerned is given the            protect human health and the environment from the harmful
opportunity to express an opinion before works begin. The              effects of the collection, transport, treatment, storage and
Commission takes the view that the period of 15 days set by            deposit of waste. Article 9 requires in addition that a permit
the joint ministerial decision is not in practice a reasonable         be granted by the competent authorities for every waste
period for the public to express its opinion.                          disposal installation.