CELEX: C2003/146/26
Language: en
Date: 2003-06-21 00:00:00
Title: Case C-98/03: Action brought on 28 February 2003 by the Commission of the European Communities against the Federal Republic of Germany

21.6.2003              EN                     Official Journal of the European Union                                          C 146/15
2.    Does Directive 85/511/EEC (1), as amended by Directive          Action brought on 28 February 2003 by the Commission
      90/423/EEC (2), afford the Member States scope to (order        of the European Communities against the Federal Repub-
      or) take supplementary national measures to control foot-                                lic of Germany
      and-mouth disease?
3.    What limits does Community law place on a Member                                          (Case C-98/03)
      State with regard to taking supplementary national
      measures other than those provided for in Directive 85/
      511/EEC, as amended by Directive 90/423/EEC?                                            (2003/C 146/26)
( 1) OJ L 315 [1985], p. 11.
( 2) OJ L 224 [1990], p. 13.
                                                                      An action against the Federal Republic of Germany was
                                                                      brought before the Court of Justice of the European Communi-
                                                                      ties on 28 February 2003 by the Commission of the European
                                                                      Communities, represented by Ulrich Wölker, Legal Adviser of
                                                                      the Commission of the European Communities, with an
                                                                      address for service in Luxembourg.
Reference for a preliminary ruling by the College van
Beroep voor het Bedrijfsleven by judgment of that Court               The applicant claims that the Court should:
of 7 January 2003 in the proceedings between Mr and
Mrs T.H.J.M. van Schaijk and Directeur van de Rijksdienst
               voor de keuring van Vee en Vlees                       1.    Declare that
                           (Case C-97/03)                                   —    by not providing for the duty to carry out an
                                                                                 assessment of the implications in the case of certain
                                                                                 projects outside special areas of conservation, as
                          (2003/C 146/25)                                        referred to in Article 4(1) of Council Directive 92/
                                                                                 43/EEC ( 1) of 21 May 1992 on the conservation of
                                                                                 natural habitats and of wild fauna and flora, which
                                                                                 pursuant to Article 6(3) and (4) of the directive are
Reference has been made to the Court of Justice of the                           to be subject to such an assessment irrespective of
European Communities by judgment of the College van Beroep                       whether those projects are likely to have a significant
voor het Bedrijfsleven (Administrative Court for Trade and                       effect on an area of special conservation;
Industry) of 7 January 2003, received at the Court Registry on
4 March 2003, for a preliminary ruling in the proceedings                   —    by authorising emissions in a special area of conser-
between Mr and Mrs T.H.J.M. van Schaijk and Directeur van                        vation, irrespective of whether they are likely to
de Rijksdienst voor de keuring van Vee en Vlees on the                           have a significant effect on that area;
following questions:
1.    May a Member State derive from Community law the                      —    by derogating from the scope of the provisions
      power to decide to kill animals which are suspected of                     concerning the protection of species in the case of
      being infected or contaminated with the foot-and-mouth                     certain non-deliberate effects on protected animals;
      virus?
                                                                            —    by failing to ensure compliance with the criteria for
2.    Does Directive 85/511/EEC (1), as amended by Directive                     derogation set out in Article 16 of the directive in
      90/423/EEC (2), afford the Member States scope to (order                   the case of certain activities which are supposed to
      or) take supplementary national measures to control foot-                  be compatible with conservation of an area;
      and-mouth disease?
                                                                            —    by retaining provisions on the application of pestic-
3.    What limits does Community law place on a Member                           ides which do not take sufficient account of the
      State with regard to taking supplementary national                         protection of species;
      measures other than those provided for in Directive 85/
      511/EEC, as amended by Directive 90/423/EEC?
                                                                            —    by failing to notify fishery catch legislation and/or
                                                                                 to ensure that such legislation contains adequate
( 1) OJ L 315 [1985], p. 11.                                                     bans on fishing,
( 2) OJ L 224 [1990], p. 13.
                                                                            the Federal Republic of Germany has failed to fulfil its
                                                                            obligations under the directive.
 ---pagebreak--- C 146/16                EN                         Official Journal of the European Union                                      21.6.2003
2.    Order the Federal Republic of Germany to pay the costs.              Reference for a preliminary ruling by the Tribunale di
                                                                           Firenze by order of that Court of 3 February 2003 in the
                                                                                    criminal proceedings against Maria Pupino
                                                                                                   (Case C-105/03)
Pleas in law and main arguments
                                                                                                   (2003/C 146/27)
—     Provisions designed to transpose Article 6(3) of the
      directive are to be evaluated in terms of whether they
      require an assessment of the implications in the case of
      all projects likely to have a significant effect on special
                                                                           Reference has been made to the Court of Justice of the
      areas of conservation. Whether a particular effect may be
      significant cannot be decided solely by reference to                 European Communities by order of the Tribunale di Firenze
      the project, but only by taking into consideration the               (District Court, Florence) — Office of the Magistrate in charge
                                                                           of preliminary enquiries — of 3 February 2003, received at
      conservation aims of each individual area of conservation
      which may be affected and the nature and extent of the               the Court Registry on 5 March 2003, for a preliminary ruling
                                                                           in the criminal proceedings against Maria Pupino on the
      habitats and species present in each individual area.
      However, the definition of ‘projects’ contained in Para-             following question:
      graph 10(1)(11)(b) and (c) of the Bundesnaturschutzge-
      setz (Federal Law on Nature Conservation) does not take
      into account areas of conservation. Even if theoretical              Are Articles 2, 3 and 8 of Council Framework Decision 220
      evidence is produced to show that, despite the restrictions          of 15 March 2001 on the standing of victims in criminal
      contained in the definition, all conceivable projects likely         proceedings to be interpreted as precluding national legislation
      to have a significant effect on special areas of conservation        such as that in Articles 392(1a) and 398(5a) of the Italian
      are in fact covered, there would still be no guarantee that          Code of Criminal Procedure, which do not provide that, in
      projects with atypical effects of, in principle, a less              respect of offences other than sexual offences or those with a
      apparent nature would be covered if they were likely to              sexual background, the testimony of witnesses who are minors
      be significant in an actual individual case. In particular,          under 16 may be heard at the stage of the preliminary
      small habitats containing unusual species may react much             enquiries, in a Special Inquiry (‘incidente probatorio’) and
      more sensitively to influences than may be anticipated               under special arrangements, for example for the recording of
      by provisions concerning projects, which standardise                 testimony using audiovisual and sound recording equipment.
      categories.
—     It is contrary to Article 6(3) and (4) of the directive for
      regard not to be had to pollution by noxious substances
      outside a (not clearly defined) area where the effects of a
      project are felt, which is the position under Paragraph 36
      of the Bundesnaturschutzgesetz.
                                                                           Appeal brought on 27 February 2003 by fax, confirmed
                                                                           by original lodged on 7 March 2003, by Védial SA against
—     Restricting the protection of sites where animals nest,              the judgment delivered on 12 December 2002 by the
      breed, live or find refuge to cases where there are                  Fourth Chamber of the Court of First Instance of the
      deliberate effects (Paragraph 43(4) of the Bundesnatur-              European Communities in Case T-110/01 between Védial
      schutzgesetz) is not consistent with Article 12(1)(d) of             SA and the Office for Harmonisation in the Internal
      the directive, the clear wording of which indicates that             Market (Trade Marks and Designs) (OHIM), the other
      intention is not necessary in the context of the prohibition                       party being France Distribution
      concerning deterioration or destruction of breeding sites
      or resting places.
                                                                                                  (Case C-106/03 P)
—     Paragraph 43(4) of the Bundesnaturschutzgesetz also
      provides for derogations from the provisions concerning                                      (2003/C 146/28)
      the protection of species in favour of intervention or
      measures already authorised, without taking into account
      the fact that at the time of authorisation it may not yet
      have been known that a protected species is affected.                An appeal against the judgment delivered on 12 December
                                                                           2002 by the Fourth Chamber of the Court of First Instance of
                                                                           the European Communities in Case T-110/01 between Védial
                                                                           SA and the Office for Harmonisation in the Internal Market
( 1) OJ L 206, 22.7.1992, p. 7.
                                                                           (Trade Marks and Designs) (OHIM), the other party being
                                                                           France Distribution, was brought before the Court of Justice of
                                                                           the European Communities on 27 February 2003 by fax,
                                                                           confirmed by original lodged on 7 March 2003, by Védial SA.