CELEX: C2004/021/39
Language: en
Date: 2004-01-24 00:00:00
Title: Case C-492/03: Action brought on 20 November 2003 (fax on 13 November 2003) by the Republic of Austria against the Commission of the European Communities

C 21/20                EN                       Official Journal of the European Union                                       24.1.2004
—     Order the kingdom of Spain to pay the costs.                      Action brought on 19 November 2003 by Commission of
                                                                           the European Communities against Kingdom of Spain
                                                                                                (Case C-490/03)
Pleas in law and main arguments
                                                                                                 (2004/C 21/38)
The pleas in law and main arguments are the same as in Case
C-485/03.
                                                                        An action against the Kingdom of Spain was brought before
                                                                        the Court of Justice of the European Communities on 19 No-
                                                                        vember 2003 by Commission of the European Communities,
                                                                        represented by José Luis Buendía Sierra of its Legal Service,
                                                                        acting as Agent, with an address for service in Luxembourg.
Action brought on 19 November 2003 by Commission of                     The applicant claims that the Court should:
  the European Communities against Kingdom of Spain
                                                                        —     declare that, by failing to adopt within the prescribed
                                                                              period all the measures necessary to comply with
                         (Case C-489/03)                                      Articles 2 and 3 of the Commission Decision of
                                                                              11.7.2001 relating to a State aid scheme applied by Spain
                                                                              to certain recently established firms in Vizcaya (notified
                          (2004/C 21/37)                                      under No C(2001)1763, or, in any event, by failing to
                                                                              notify the Commission of such provisions in accordance
                                                                              with Article 4, the Kingdom of Spain has failed to fulfil
                                                                              its obligations under that decision;
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 19 No-              —     Order the kingdom of Spain to pay the costs.
vember 2003 by Commission of the European Communities,
represented by José Luis Buendía Sierra of its Legal Service,
acting as Agent, with an address for service in Luxembourg.
                                                                        Pleas in law and main arguments
The applicant claims that the Court should:
                                                                        The pleas in law and main arguments are the same as in Case
—     declare that, by failing to adopt within the prescribed           C-485/03.
      period all the measures necessary to comply with
      Articles 2 and 3 of the Commission Decision of
      11.7.2001 relating to a State aid scheme applied by
      Spain to a number of recently created undertakings in
      Guipúzcoa (notified under No C(2001)1761) in the form
      of a tax credit of 45% of the investments made, or, in any
      event, by failing to notify the Commission of such
      provisions in accordance with Article 4, the Kingdom of           Action brought on 20 November 2003 (fax on 13 Novem-
      Spain has failed to fulfil its obligations under that             ber 2003) by the Republic of Austria against the Com-
      decision;                                                                     mission of the European Communities
—     Order the kingdom of Spain to pay the costs.
                                                                                                (Case C-492/03)
                                                                                                 (2004/C 21/39)
Pleas in law and main arguments
The pleas in law and main arguments are the same as in Case             An action against the Commission of the European Communi-
C-485/03.                                                               ties was brought before the Court of Justice of the European
                                                                        Communities on 20 November 2003 (fax on 13 November
                                                                        2003) by the Republic of Austria, represented by Dr Harald
                                                                        Dossi, with an address for service in Luxembourg.
 ---pagebreak--- 24.1.2004              EN                        Official Journal of the European Union                                         C 21/21
The Republic of Austria claims that the Court should:                         —   Protection of the environment
1.    annul the Commission’s decision of 2 September 2003
      (C(2003) 3117 Final), rejecting the national provisions
      on banning the use of genetically modified organisms
      (GMOs) in Upper Austria notified by the Republic of                         The Oö. GTVG 2002 is a measure to protect and
      Austria pursuant to Article 95(5) EC (1);                                   preserve the natural environment, which includes
                                                                                  the field of biodiversity in its widest sense. The
2.    order the Commission to pay the costs.                                      notified measure relates not only to the coexistence
                                                                                  of conventional agricultural crop production and
                                                                                  the farming of genetically modified crops, but also
                                                                                  protects flora and fauna as a whole from impairment
                                                                                  or elimination by GMOs. The Commission was
                                                                                  under a duty to answer the question of whether the
Pleas in law and main arguments
                                                                                  Oö. GTVG 2002 was necessary for the protection
                                                                                  of the environment or the working environment. It
—     Infringement of essential procedural requirements                           failed to do so, as the issue of the compatibility
                                                                                  (coexistence) of organic and conventional GMO-free
                                                                                  crop production and naturally growing crops with
      —     Failure to observe the right to participate in the                    GMO farming on a wide scale was left out of its
            procedure and the right to a fair hearing                             assessement. The issue of coexistence was as a result
                                                                                  impermissibly excluded from the Community law
            There was a failure to comply with the right to a fair                definition of the environment. This distinction con-
            hearing, as the Republic of Austria was not given                     stitutes an approach that cannot be understood, as
            the opportunity to submit observations on the                         the concept of the environment is neither materially
            content of or the conclusion reached in the Com-                      nor geographically restricted by the EC Treaty.
            mission’s decision before it was adopted. Matters                     In procedures under Directive 2001/18/EC (2), the
            relevant to a hearing in this case included not only                  notion of coexistence must plainly be taken into
            any observations submitted by Member States, but                      account in the context of the environmental assess-
            also the only crucial evidence referred to in the                     ment that is to be carried out. It is not possible to
            procedure, namely the opinion of the European                         separate the concepts of ‘environment’ and ‘coexist-
            Food Safety Authority (EFSA) of 4 July 2003. Had it                   ence’, as the Commission does, and their separation
            been possible to refute the opinion of the EFSA, a                    is arbitrary. Contrary to the Commission’s view, the
            different result might have been reached. As this                     concerns raised by the Republic of Austria regarding
            could not occur in the absence of prior notice of                     the question of coexistence of genetically modified
            the opinion, the decision-making process did not                      and unmodified cultivation clearly relate to specific
            comply with constitutional principles relating to                     environmental protection problems for the purposes
            proper procedure and there was accordingly a                          of Article 95(5) EC.
            breach of essential procedural requirements.
      —     Failure to observe the obligation to state reasons
            There are serious deficiencies in the reasoning
            contained in the decision. In it, the Commission
            referred to and described the content and aims of the
            Austrian draft Law (the Upper Austria Gentechnisch-               —   New scientific evidence
            Verbotgesetz (Law prohibiting genetic engineering)
            2002; ‘the Oö. GTVG 2002’) in general terms only.
            In particular, the Commission gave only peripheral
            consideration to the fact that the Law is to be
            applicable for only three years from its adoption. In
            view of the fact that the statement of reasons for a                  In reliance on the opinion of the EFSA, the Com-
            legal measure must deal with arguments and con-                       mission formed the view that the Müller Report, on
            cerns of the Member States which are clearly particu-                 which the Oö. GTVG 2002 is based, contains data
            larly important to them, the Commission’s approach                    which were for a large part available before the
            constitutes a gross infringement of the duty to state                 adoption of Directive 2001/18/EC. The Republic of
            reasons.                                                              Austria does not share this view. The decisive point
                                                                                  is the finding in the Müller Report that organic and
                                                                                  conventional GMO-free crop production in practice
—     Infringement of the Treaty or a requirement when                            cannot possibly coexist with GMO farming on a
      implementing it                                                             wide scale and therefore appropriate environmental
                                                                                  protection cannot be achieved. The study, like
      In the opinion of the Republic of Austria, the draft Oö.                    any serious work, admittedly contains a grounded
      GTVG 2002 fulfils the requirements of Article 95(5) EC.                     scientific assessment of data that were partly already
 ---pagebreak--- C 21/22                EN                          Official Journal of the European Union                                        24.1.2004
           available, but this has no effect on its own value.             Reference for a preliminary ruling by the Cour d’appel de
           The decisive point is that the study itself contains            Bordeaux, chambre de l’instruction, by order of that
           new scientific evidence and conclusions and clearly             Court of 4 November 2003 in the case of Ministère public
           shows that a current risk of negative consequences                              against André Rochus Hiebeler
           for the environment, fauna and flora cannot be ruled
           out.
                                                                                                   (Case C-493/03)
     —     Problem specific to the Member State concerned
                                                                                                    (2004/C 21/40)
           The structure of the farming system in Upper
           Austria, demonstrably consisting of small farms,
           coupled with the constant increase in the proportion
           of organically managed areas and the number of
           organically run farming enterprises, means that the             Reference has been made to the Court of Justice of the
           character of this region of the Community is unique.            European Communities by order of the Cour d’appel de
                                                                           Bordeaux, chambre de l’instruction, (Examining Chamber of
           In the opinion of the Republic of Austria, the                  the Bordeaux Court of Appeal) of 4 November 2003, received
           additional requirement laid down by Article 95(5)               at the Court Registry on 24 November 2003, for a preliminary
           EC, that the problem which is specific to the                   ruling in the case of Ministère public against André Rochus
           Member State should have arisen only after the                  Hiebeler on the following questions:
           harmonisation measure has been adopted, has been
           fulfilled. The fact that concerns had arisen earlier in
           that regard does not preclude this. The decisive                —     Do the transportation and sale of the same quantity of
           point is that the full extent of the problem became                   drugs constitute different acts depending on whether
           apparent only after the adoption of the harmonis-                     these acts are committed in only one Member State or
           ation measure. Only on publication of the Müller                      from one Member State to another?
           study on 28 April 2002 was it possible to confirm
           the actual scope of the problem.                                —     Does the importation into a Member State of the same
                                                                                 quantity of drugs and its transportation shortly thereafter
     —     Proportionality                                                       to another Member State constitute a single act or
                                                                                 separate acts?
           The Oö. GTVG 2002 should be seen as a national
           provision which is necessary for the protection of              —     Does Article 54 of the Schengen Convention entitle a
           the environment and which, having regard to the                       Contracting State to which a request for extradition is
           fact that it is applicable for a limited period of three              addressed to accept a plea of ne bis in idem where the
           years, also falls to be classified as proportionate.                  requirements for the application of that principle are met,
                                                                                 but where the final conviction on the basis of which it
     —     The precautionary principle and the principle that                    is sought to have the prosecution discontinued was
           preventive action should be taken                                     pronounced not in that State but in another Contracting
                                                                                 State?
           The Oö. GTVG 2002 is a precautionary and preven-
           tive measure within the meaning of Article 174(2)
           EC. This provision states that Community policy on              —     Does the prohibition under Article 54 of the Schengen
           the environment is to aim at a high level of                          Convention preclude the enforcement of a judgment
           protection taking into account the diversity of                       imposing a penalty delivered in a Member State before
           situations in the various regions of the Community                    the coming into force of that Convention?
           and is to be based inter alia on the precautionary
           principle and the principle that preventive action              —     Does the offence of being a party to dealing in more than
           should be taken. The distinction drawn by the                         minimal quantities of drugs, laid down by and punishable
           Community legislature makes sense only if the                         under Paragraphs 30.I.4, 29.I(1), III(2)2 and 29.I.4, Para-
           terms ‘precaution’ and ‘prevention’ are each given a                  graph 3-I, 2-I, 1-I combined with Annex III of Para-
           separate meaning. ‘Precaution’ accordingly begins at                  graph 1-II of the German Law on drugs, in the version of
           a point in time at which a threat to the environment                  27 January 1987, and Paragraphs 25-II, 52 and 53 of the
           is not sufficiently precise for ‘preventive action’ to                Federal Criminal Code, protect the same legal interests as,
           be necessary in relation to it. The Oö. GTVG 2002                     or different legal interests from, those protected by the
           is clearly aimed at the avoidance of risks and is                     offence of the importation, unlawful possession and sale
           therefore justified by the precautionary principle.                   of more than minimal and partially substantial quantities
                                                                                 of drugs, laid down by and punishable under Articles 71,
                                                                                 72, 74(I)2, 74(II) and 75 of Italian Law No 685/75 of
(1) OJ L 230 of 16.9.2003, p. 34.                                                22 December 1975 and Articles 81, 56 and 110 of the
(2) OJ L 106 of 17.4.2001, p. 1.                                                 Italian Criminal Code?