CELEX: C1998/299/42
Language: en
Date: 1998-09-26 00:00:00
Title: Reference for a preliminary ruling by the Divisional Court, Queen's Bench Division, by order of that Court of 14 July 1998, in the Case of the Queen against (1) Minister for Agriculture, Fisheries and Food, (2) Secretary of State for the Environment, ex parte: Monsanto plc, and I Pi Ci SpA, Intervener (Case C-306/98)

26.9.98                EN                    Official Journal of the European Communities                                  C 299/27
5. Questions on shift work and shift workers:                           Ð infringement of Articles 90 and 91 of the Staff
                                                                            Regulations of Officials,
     In view of the fact that the working time at issue is
     shift work only in relation to on-call duty, and in the
     absence of harmonising legislation, can the work                   Ð infringement of Articles 26 and 43 of the Staff
     performed by the medical practitioners concerned be                    Regulations of Officials: contrary to the assertions of
     regarded as shift work and must they be regarded as                    the Court of First Instance, the absence of periodic
     shift workers in accordance with the definition                        staff reports for 1991 to 1993 and 1993 to 1995 not
     contained in Article 2(5) and (6) of the Directive?                    only affected the administrative situation and career of
                                                                            the appellant but also deprived that official of all
(1) Council Directive 93/104/EC of 23 November 1993
                                                                            defence rights,
    concerning certain aspects of the organisation of working time
    (OJ L 307, 13.12.1993, p. 18).                                      Ð breach of the concept of interests of the service' and
(2) OJ L 183, 29.6.1989, p. 1.
                                                                            breach of the audi alteram parte rule and of the
                                                                            principles of equal treatment and of non-
                                                                            discrimination: in finding that the Commission did not
                                                                            have to prove the facts alleged or the extent to which
                                                                            blame should be apportioned between the two officials
Appeal brought on 3 August 1998 by W. against the                           concerned, the Court of First Instance has contravened
judgment delivered on 28 May 1998 by the Fifth Chamber                      the case-law and also implicitly acknowledged that the
of the Court of First Instance of the European                              Commission committed an error of assessment and
Communities in Joined Cases T-78/96 and T-170/96                            misused its powers,
between W. and the Commission of the European
                           Communities                                  Ð infringement of Article 25(1) of the Staff Regulations
                       (Case C-304/98 P)                                    of Officials.
                          (98/C 299/41)
                                                                        (Case T-170/96)
An appeal against the judgment delivered on 28 May
1998 by the Fifth Chamber of the Court of First Instance                Ð infringement of Articles 215(2) and 178 of the EC
of the European Communities in Joined Cases T-78/96                         Treaty: for the Court of First Instance to regard an
and T-170/96 between W. and the Commission of the                           action for damages as a claim for compensation
European Communities was brought before the Court of                        ancillary to an action for annulment amounts to a
Justice of the European Communities on 3 August 1998                        distortion of the applicant's pleadings. The material
by W., represented by Gilles Bouneou, of the Luxembourg                     and non-material damage in respect of which
Bar, with an address for service in Luxembourg at 4 rue                     reparation is sought in the present case arises out of a
de l'Avenir.                                                                failure by the administration to adopt a decision and
                                                                            was caused to the appellant by conduct which cannot
The appellant claims that the Court should:                                 be characterised as an act adversely affecting an
                                                                            official because they produce no legal effects. This is
Ð declare the appeal admissible and well-founded,
                                                                            precisely the case with regard to the plea alleging:
and accordingly                                                             infringement of Articles 4 and 29; breach of the duty
                                                                            to have regard for the welfare of officials; misuse of
Ð set aside the contested judgment in Cases T-78/96 and                     powers; inadequate statement of reasons.
     T-170/96,
Ð grant the form of order sought at first instance,
Ð order the Commission to pay the costs in their
     entirety.
                                                                        Reference for a preliminary ruling by the Divisional
Pleas in law and main arguments adduced in support:                     Court, Queen's Bench Division, by order of that Court of
                                                                        14 July 1998, in the Case of the Queen against (1)
(Case T-78/96)                                                          Minister for Agriculture, Fisheries and Food, (2) Secretary
                                                                        of State for the Environment, ex parte: Monsanto plc, and
Ð irregularity of the proceedings: the Court of First                                      I Pi Ci SpA, Intervener
     Instance misinterpreted the facts submitted before it                                    (Case C-306/98)
     and failed to take into account evidence adduced and
     offered to be adduced by the appellant,                                                    (98/C 299/42)
Ð the Court of First Instance restricted the rights of the
     defence,                                                           Reference has been made to the Court of Justice of the
                                                                        European Communities by an order of the Divisional
Ð contradictory and inadequate grounds of the judgment                  Court, Queen's Bench Division, of 14 July 1998, which
     appealed against as a result of incorrect findings of              was received at the Court Registry on 4 August 1998, for
     facts,                                                             a preliminary ruling in the Case of The Queen against (1)
 ---pagebreak--- C 299/28              EN                    Official Journal of the European Communities                                     26.9.98
Minister for Agriculture, Fisheries and Food, (2) Secretary                conforms to the limit values set in accordance with
of State for the Environment, ex parte: Monsante plc, and                  Article 3 of Council Directive 76/160/EEC of
I Pi Ci SpA, Intervener, on the following questions:                       8 December 1975 concerning the quality of bathing
                                                                           water (1) within 10 years following the notification of
1. Whenever a Member State authorises the placing on                      this Directive, the Kingdom of Belgium has failed to
     the market in its territory of a plant protection                     fulfil its obligations under Article 4 of Directive 76/
     product pursuant to Article 8(2) of Council Directive                 160/EEC and the third paragraph of Article 189 of the
     91/414/EEC of 15 July 1991 concerning the placing of                  EC Treaty, and
     plant protection products on the market (1), does
     Article 8(3) of that Directive apply so as to require the
                                                                       2. order the Kingdom of Belgium to pay the costs.
     Member State to evaluate the application for
     authorisation in accordance with the requirements laid
     down in Article 4(1)(b)(i) to (v) and (c) to (f)?'                Pleas in law and main arguments adduced in support:
2. If the answer to question 1 is in the affirmative, is the
     Member State under an obligation to apply the                     Under the third paragraph of Article 189 of the EC Treaty,
     requirements of Article 4(1)(b)(i) to (v) to such                 in conjunction with Article 4(1) of Directive 76/160/EEC,
     applications in the light of current scientific and              Belgium is required to make the quality of its bathing
     technical knowledge'?                                             waters conform to the limit values set in accordance with
                                                                       Article 3 of the Directive within 10 years, a period which
                                                                       expired on 11 December 1985.
3. If the answer to question 1 is in the affirmative, is the
     Member State also under an obligation to apply the
     requirements of Article 4(1)(c) to (f) to such                    In the Commission's view, the Walloon Region authorities
     applications in the light of current scientific and              were wrong to revise in 1996 the list of bathing areas and
     technical knowledge'?                                             withdraw some 30 bathing sites so that there appear to
                                                                       remain only 10 officially designated bathing areas. The
4. If the answers to questions 1, 2 and/or 3 are in the                grounds relied on in order to justify such revision are not
     affirmative is the Member State under an obligation to            sufficient in order to exclude the sites in question from the
     ensure that its national provisions concerning the data           bathing waters covered by the Directive. The Belgian
     to be provided (as referred to in Articles 8(3) and               authorities advertise no fewer than 16 of those sites in the
     13(6) of the Directive) permit an evaluation to be                1998 guide to camping sites as bathing areas available
     carried out in accordance with the criteria laid down             within a short distance from those camping sites.
     in Article 4(1)(b)(i) to (v) and (c) to (f) of the Directive
     in the light of current scientific and technical
     knowledge'?                                                       The measures adopted by Belgium in order to make the
                                                                       quality of the waters conform to the limit values set
(1) OJ L 230, 19.8.1991, p. 1.                                         pursuant to Article 4 of the Directive, in particular the
                                                                       programmes of investment in water purification both in
                                                                       Flanders and in the Walloon Region, are inadequate; the
                                                                       Belgian authorities mention the setting up of water
                                                                       treatment infrastructures in general without being specific
                                                                       about their impact on the improvement of bathing-water
                                                                       quality. So far as concerns Flanders, the water purification
Action brought on 5 August 1998 by the Commission of                   programme does not even cover all the bathing areas. As
the European Communities against the Kingdom of                        to the Walloon Region, the programmes contain no details
                             Belgium                                   as to the dates for the start and completion of the work
                        (Case C-307/98)                                on the infrastructures provided for or information on the
                                                                       exact location of those works.
                         (98/C 299/43)
An action against the Kingdom of Belgium was brought                   According to the report on the quality of bathing waters
before the Court of Justice of the European Communities                during the 1995 bathing season for the whole of Belgium
on 5 August 1998 by the Commission of the European                     (EUR 16755), the rate of conformity of freshwater bathing
Communities, represented by Francisco de Sousa Fialho,                 areas was 41,4 %. The report on the quality of bathing
of its Legal Service, and O. Couvert-CasteÂra, a national              waters during the 1996 bathing season for the whole of
civil servant on secondment to the Legal Service, acting as            Belgium (EUR 17629) indicates that, even if the 30 sites
Agents, with an address for service in Luxembourg at the               indicated by the Walloon Region are removed from the list
office of Carlos Gómez de la Cruz, of its Legal Service,               of Walloon sites taken into account for the purpose of
Wagner Centre, Kirchberg.                                              drawing up the annual reports on the implementation of
                                                                       the Directive, the level of conformity is only 85,5 %.
The applicant claims that the Court should:
                                                                       (1) OJ L 31, 5.2.1976, p. 1.
1. declare that, by failing to adopt the necessary
     measures to ensure that the quality of bathing water