CELEX: C1999/136/08
Language: en
Date: 1999-05-15 00:00:00
Title: Case C-38/99: Action brought on 10 February 1999 by the Commission of the European Communities against the French Republic

C 136/4                   EN                    Official Journal of the European Communities                                         15.5.1999
Judges; A. La Pergola, Advocate General; H. von Holstein,                                      ORDER OF THE COURT
Deputy Registrar, has given a judgment on 9 March 1999, in
which it has ruled:                                                                                 of 2 March 1999
It is contrary to Articles 52 and 58 of the EC Treaty for a Member
State to refuse to register a branch of a company formed in accordance     in Joined Cases C-231/98 and C-232/98 (reference for a
with the law of another Member State in which it has its registered        preliminary ruling from the Tribunal de Grande Instance
office but in which it conducts no business where the branch is            d’Épinal: SA Lamboley (C-231/98), Bouctot (C-232/98) v
intended to enable the company in question to carry on its entire                           Administration des Impôts (1)
business in the State in which that branch is to be created, while
avoiding the need to form a company there, thus evading application        (Article 104(3) of the Rules of Procedure — Manifestly
of the rules governing the formation of companies which, in that                                   identical question)
State, are more restrictive as regards the paying up of a minimum
share capital. That interpretation does not, however, prevent the
authorities of the Member State concerned from adopting any                                         (1999/C 136/07)
appropriate measure for preventing or penalising fraud, either in
relation to the company itself, if need be in cooperation with the
Member State in which it was formed, or in relation to its members,                            (Language of the case: French)
where it has been established that they are in fact attempting, by
means of the formation of a company, to evade their obligations            In joined Cases C-231/98 and C-232/98: reference to the
towards private or public creditors established in the territory of the    Court under Article 177 of the EC Treaty from the Tribunal de
Member State concerned.                                                    Grande Instance d’Épinal (France) for a preliminary ruling in
                                                                           the proceedings pending before that court between SA Lam-
(1) OJ C 228, 26.7.1997.                                                   boley (C-231/98), Bouctot (C-232/98) and Administration des
                                                                           Impôts on the interpretation of Article 95 of the EC Treaty —
                                                                           the Court, composed of: G. C. Rodrı́guez Iglesias, President,
                                                                           P. J. G. Kapteyn, J.-P. Puissochet, G. Hirsch and P. Jann,
                                                                           Presidents of Chambers, G. F. Mancini, J. C. Moitinho de
                                                                           Almeida, C. Gulmann, J. L. Murray, D. A. O. Edward, H.
                     ORDER OF THE COURT                                    Ragnemalm, L. Sevón and M. Wathelet (Rapporteur), Judges;
                                                                           F. G. Jacobs, Advocate General; R. Grass, Registrar, made an
                                                                           order on 2 March 1999, the operative part of which is as
                            of 2 March 1999                                follows:
in Case C-422/98 (reference for a preliminary ruling from
the Tribunal de Première Instance de Bruxelles): Colonia                   Article 95 of the EC Treaty does not preclude the application of
Versicherung AG Zweigniederlassung München and                             national rules on motor vehicle taxation which provide for an increase
                      Others v Belgian State (1)                           in the progression coefficient of the kind at issue in the main
                                                                           proceedings, in so far as that increase does not have the effect of
    (Reference for a preliminary ruling — Inadmissibility)                 favouring the sales of vehicles of domestic manufacture over the sale
                                                                           of vehicles imported from other Member States.
                            (1999/C 136/06)
                                                                           (1) OJ C 278, 5.9.1998.
                     (Language of the case: French)
In Case C-422/98: reference to the Court under Article 177 of
the EC Treaty from the Tribunal de Première Instance de
Bruxelles for a preliminary ruling in the proceedings pending
before that court between Colonia Versicherung AG Zweignie-
derlassung München and Others v Belgian State on the
interpretation of Article 30 of the EC Treaty — the Court,                 Action brought on 10 February 1999 by the Commission
composed of: G. C. Rodrı́guez Iglesias, President, P. J. G. Kap-           of the European Communities against the French Republic
teyn, J.-P. Puissochet, G. Hirsch and P. Jann (Rapporteur),
Presidents of Chambers, G. F. Mancini, J. C. Moitinho de
Almeida, C. Gulmann, J. L. Murray, D. A. O. Edward, H. Ragne-                                        (Case C-38/99)
malm, L. Sevón and M. Wathelet, Judges; G. Cosmas, Advocate
General; R. Grass, Registrar, has made an order on 2 March                                          (1999/C 136/08)
1999, the operative part of which is as follows:
The reference for a preliminary ruling made by the Tribunal de             An action against the French Republic was brought before the
Première Instance de Bruxelles, by judgment of 10 November 1998,           Court of Justice of the European Communities on 10 February
is inadmissible.                                                           1999 by the Commission of the European Communities,
                                                                           represented by Paolo Stancanelli, of its Legal Service, and
                                                                           Olivier Couvert-Castéra, a national civil servant on secondment
(1) OJ C 20, 23.1.1999.                                                    to the Legal Service, acting as Agents, with an address for
                                                                           service in Luxembourg at the office of Carlos Gómez de la
                                                                           Cruz, Wagner Centre, Kirchberg.
 ---pagebreak--- 15.5.1999              EN                    Official Journal of the European Communities                                        C 136/5
The Commission of the European Communities claims that                      species have not completed their reproduction and rearing
the Court should:                                                           cycles; thus, the regulatory provisions in issue have been
                                                                            adopted in disregard of the objectives laid down by the
                                                                            directive 79/409/EEC and must therefore be annulled’. The
— declare that, by failing correctly to transpose Article 7 of              dates for the early opening of the season for hunting water
    Council Directive 79/409/EEC of 2 April 1979 on the                     fowl, as fixed by Law No 98-549 of 3 July 1998, are
    conservation of wild birds (1), by omitting to communicate              essentially the same as those applying under the previous
    all the transposition measures relating to the whole of its             legal arrangements. Thus, they are vitiated by the same
    territory and by failing correctly to implement the aforesaid           defect, namely, the fact of being determined according to
    provision, the French Republic has failed to fulfil its                 inappropriate factors and the fact of being too early.
    obligations under Directive 79/409/EEC;                                 Moreover, the fact that the dates for the early opening of
                                                                            the season for hunting water fowl are now fixed directly
                                                                            by the legislature, and that the fixing of early dates is no
— order the French Republic to pay the costs.                               longer simply delegated to the minister with responsibility
                                                                            for hunting, constitutes an aggravated infringement of
                                                                            Article 7 of Directive 79/409/EEC. Indeed, the inclusion in
                                                                            Article L 224-2 of the Rural Code of a table of dates for
Pleas in law and main arguments                                             the early opening of the hunting season in respect of the
                                                                            species in question gives those dates a mandatory and
                                                                            permanent character, whereas, previously, the fixing of
The French legislation concerning the dates of the season for               early dates by the minister with responsibility for hunting
hunting migratory birds, as contained, in particular, in Article            merely constituted an option which the minister could
L 224 of the Rural Code, in the version thereof resulting from              exercise or not exercise as he thought fit;
Law 94-591 of 15 July 1994 and, subsequently, Law 98-549
of 3 July 1998, appears to be clearly contrary to the provisions
of Council Directive 79/409/EEC in several respects, as follows:        — the dates fixed for the closure of the hunting season are
                                                                            too late. The closing dates for the hunting season, as
                                                                            referred to both in the Law of 15 July 1994 and in the Law
— the principle of complete protection laid down by Article                 of 3 July 1998, are not in conformity with the requirements
    7(4) of the directive has not been transposed. The trans-               of Article 7(4) of Directive 79/409/EEC. They enable the
    position of that principle in relation to the hunting season            final closing dates fixed by those laws to overlap with the
    dates fixed under the national legislation is necessary in              scientifically recognised return migration period of 31
    order that the authorities responsible for setting the                  species. The fact that the species of birds in question may
    hunting season dates may do so in accordance with the                   be hunted in France despite the pre-mating migration
    clear provisions of the directive, and in order that all                period having already commenced is liable to cause a
    interested parties may benefit from the full effect of its              depletion of hunting stocks. Such a situation is clearly
    provisions;                                                             contrary to the ban on the hunting of migratory birds
                                                                            ‘during their return to their rearing grounds’ laid down by
                                                                            Article 7(4) of Directive 79/409/EEC. According to the
— the dates fixed for the opening of the hunting season are                 Commission, the fact that the closing dates of the hunting
    too early. Given that the principle of complete protection              season as fixed under French law are not in conformity
    has not been transposed, Article R. 224-6 of the Rural                  with the directive is due to the fact that the criteria
    Code enables the minister with responsibility for hunting               pursuant to which the French authorities have fixed the
    to exercise his discretion to fix an early date for the                 hunting season dates are not exclusively ornithological and
    opening of the season for hunting water fowl, without                   founded on scientific considerations. In fixing the closing
    taking into account the ban on hunting during the rearing               dates for hunting, the French authorities appear to have
    season and the period of reproduction, as laid down by                  taken into consideration other factors, such as the state of
    Article 7(4) of the directive. Thus, in numerous parts of the           conservation of migratory species which are capable of
    territory of the French Republic, a significant proportion of           being hunted. However, as the law stands, and having
    young mallards (anas platyrhyncus) are not yet able to fly at           regard to the interpretation applied by the Court of Justice
    the time of the early opening of the hunting season in                  in its judgment of 19 January 1994 in Case C-435/92,
    respect of surface ducks and limicolae — especially in the              that approach cannot be regarded as consistent with
    regions of Ile-de-France, Upper Normandy, Burgundy,                     Community law. Hunting must cease as soon as the
    Brittany, Aquitaine and Languedoc-Roussillon, where, in                 migration begins;
    various départements, over one in five young birds has not
    yet taken wing. Similarly, in numerous regions of France,
    a significant proportion of young coots (fulica atra) are not       — there has been no communication of any provisions
    yet able to fly at the time of the early opening of the                 transposing the directive in relation to the départements of
    hunting season in respect of other species of water fowl                Lower Rhine, Upper Rhine and Moselle.
    — especially in the regions of Ile-de-France, Burgundy,
    Midi-Pyrénées and Auvergne, where, in various départe-
    ments, over one in five young coots has not yet taken wing.
    The Commission observes in that regard that, by various             (1) OJ L 103, 25.8.1979, p. 1.
    judgments dated 11 May 1998, the French Conseil d’État
    (Council of State) annulled a number of the aforementioned
    ministerial orders, on the ground that the opening of the
    season for hunting water fowl ‘has been authorised in
    respect of a period and areas in which those different