CELEX: C1997/228/11
Language: en
Date: 1997-07-26 00:00:00
Title: Reference for a preliminary ruling by the Corte Suprema di Cassazione - Sezione Prima Civile by order of that court of 10 February 1997 in the case of Ecotrade Srl against AFS - Altiforni e Ferriere di Servola SpA (Case C-200/97)

No C 228/6            EN                   Official Journal of the European Communities                                    26 . 7. 97
    legislation of a Member State remedies are available in           individual actions for enforcement from being taken
    respect of acts of the administration generally and               or pursued after the measure initiating the special
    different remedies are available in respect of decisions          administration procedure has been adopted ?
     concerning entry by nationals of that Member State,
     the obligation imposed on the Member State by that
    provision is satisfied if nationals of other Member
     States enjoy the same remedies as those available
     against acts of the administration generally in that             Action brought on 30 May 1997 by the Commission of
     Member State.                                                    the European Communities against the Kingdom of
                                                                                                      Belgium
                                                                                                 Case C-207/97 )
2 . On a proper construction of Article 9 of Directive 64/
     221 /EEC, the three cases mentioned in Article 9 (1 )                                        ( 97/C 228/ 12 )
     (namely 'where there is no right of appeal to a court
     of law, or where such appeal may be only in respect of           An action against the Kingdom of Belgium was brought
     the legal validity of the decision, or where the appeal          before the Court of Justice of the European Communities
     cannot have suspensory effect') apply equally as                 on 30 May 1997 by the Commission of the European
     regards Article 9 (2), that is to say, where the decision        Communities, represented by Richard B. Wainwright,
     challenged is a refusal to issue a first residence permit        Principal Legal Adviser, and Jean-Francis Pasquier, a
     or a decision ordering expulsion adopted before the              national civil servant on secondment to the Legal Service,
     issue of such a permit.                                          acting as Agents, with an address for service in
                                                                      Luxembourg at the office of Carlos Gomez de la Cruz,
3 . A national of a Member State against whom an initial              Wagner Centre, Kirchberg.
     decision refusing entry into another Member State has
     been made on grounds of public order or public                   The applicant claims that the Court should:
     security has a right of appeal under Article 8 of the            — declare that, by failing, in breach of Article 7 of
     directive and, if appropriate, a right to obtain the                   Directive 76/464/EEC ( x ), to adopt the programmes
      opinion of an independent competent authority in                      for the reduction of pollution incorporating quality
     accordance with Article 9 of the Directive, with                       objectives, at least as regards the 99 substances listed
      respect to a fresh decision taken by the administrative               in the annex to the application, or by failing to
     authorities on an application made by him after a                      communicate to the Commission summaries of the
      reasonable time has elapsed since the last decision                   programmes in question and the results of the
     prohibiting him from entering the country.                             application thereof, the Kingdom of Belgium has failed
                                                                            to fulfil its obligations under the EC Treaty,
(■) OJ No C 159 , 24 . 6 . 1995 .
                                                                       — order the Kingdom of Belgium to pay the costs .
                                                                       Pleas in law and main arguments adduced in support:
                                                                       The Directive, which entered into force on the date of its
                                                                       notification, that is to say, 5 May 1976, pursuant to
Reference for a preliminary ruling by the Corte Suprema                Article 191 of the EEC Treaty ( which applied at that
di Cassazione — Sezione Prima Civile by order of that                  time ), does not expressly prescribe the period within
court of 10 February 1997 in the case of Ecotrade Sri                  which the obligations therein set out were to be
       against AFS — Altiforni e Ferriere di Servola SpA               specifically implemented. However, as regards the national
                          ( Case C-200/97                              programmes for the reduction of pollution caused by the
                                                                       substances referred to in List II in the Annex to the
                            ( 97/C 228/ 11
                                                                       Directive, it is apparent from Articles 7 and 12 of the
                                                                       Directive that the Member States were obliged, in
 Reference has been made to the Court of Justice of the                principle, to draw up the programmes and to
 European Communities by order of the Corte Suprema di                 communicate summaries of them to the Commission by
 Cassazione — Sezione Prima Civile ( Supreme Court of                  5 August 1978 ; nevertheless, by letter dated 3 November
 Cassation, First Civil Division ) of 10 February 1997,                1976, the Commission proposed that the Member States
 which was received at the Court Registry on 26 May                    should act on the basis of the following dates :
 1997, for a preliminary ruling in the case of Ecotrade Sri            15 September 1981 for the programmes for the reduction
 against AFS — Altiforni e Ferriere di Servola SpA on the              of pollution caused by the substances referred to in List II
 following question :                                                  and 15 September 1986 for the implementation of those
                                                                       programmes .
 May a State measure adopted pursuant to Law No 95                     The Commission does not claim that the list of the 99
 which provides for the exemption of large enterprises in              priority substances annexed to the letter before action and
 difficulties from the usual insolvency proceedings and at             the reasoned opinion constitutes a legally binding
 the same time for the enterprise to continue trading be               measure; however, it considers that, so long as the Council
 regarded as aid within the meaning of Article 92 et seq. of           has not fixed emission limit values in respect of substances
 the Treaty, in view of the fact that Decree Law No 414 of             which ought to appear in List I, they must still be treated
 31 July 1981 ( converted into Law No 544/ 1981 ) precludes             as falling within List II .