CELEX: C2001/212/33
Language: en
Date: 2001-07-28 00:00:00
Title: Case C-226/01: Action brought on 6 June 2001 by the Commission of the European Communities against the Kingdom of Denmark

C 212/18               EN                    Official Journal of the European Communities                                      28.7.2001
Appeal brought on 28 May 2001 against the decision                            to Community law is a decision of a supreme court of a
handed down on 28 March 2001 by the Court of First                            Member State, such as, as in this case, the Verwaltungsger-
Instance of the European Communities (First Chamber)                          ichtshof?
in Case T-130/00 between Javier Reyna González del
Valle and the Commission of the European Communities                    2.    If the answer to Question 1 is yes:
                        (Case C-219/01 P)                                     Is the case-law of the Court of Justice according to which
                                                                              it is for the legal system of each Member State to
                                                                              determine which court or tribunal has jurisdiction to
                         (2001/C 212/31)
                                                                              hear disputes involving individual rights derived from
                                                                              Community law (see inter alia Case C-54/96 Dorsch
An appeal against the decision handed down on 28 March                        [1997] ECR I-4961) also applicable when the conduct of
2001 by the Court of First Instance of the European Communi-                  an institution purportedly contrary to Community law is
ties (First Chamber) in Case T-130/00 between Javier Reyna                    a judgment of a supreme court of a Member State, such
González del Valle and the Commission of the European                        as, as in this case, the Verwaltungsgerichtshof?
Communities was brought before the Court of Justice of the
European Communities on 28 May 2001 by Javier Reyna                     3.    If the answer to Question 2 is yes:
González del Valle, represented by J.M. Valoria de Arana,
abogado.                                                                      Does the legal interpretation given in the above-men-
                                                                              tioned judgment of the Verwaltungsgerichtshof, accord-
The appellant claims that the Court of Justice should:                        ing to which the special length of service increment is a
                                                                              form of loyalty bonus, breach a rule of directly applicable
—     set aside the contested order in its entirety and                       Community law, in particular the prohibition on indirect
—     uphold all the claims which he brought before the Court                 discrimination in Article 48 of the EC Treaty (now
      of First Instance.                                                      Article 39 EC) and the relevant settled case-law of the
                                                                              Court of Justice?
Pleas in law and main arguments                                         4.    If the answer to Question 3 is yes:
Although Articles 90 and 91 of the Staff Regulations of                       Is this rule of directly applicable Community law such as
Officials of the European Communities do not make any                         to create a subjective right for the plaintiff in the main
distinction between irregularities which render a measure void                proceedings?
and those which render it merely voidable, that does not mean
that an administrative measure which is void is always subject          5.    If the answer to Question 4 is yes?:
to the time-limits for bringing proceedings prescribed by those
articles.                                                                     Does the Court of Justice of the European Community
                                                                              have sufficient information in the content of the order
                                                                              for reference to enable it to rule itself as to whether the
                                                                              Verwaltungsgerichtshof in the circumstances of the main
                                                                              proceedings described has clearly and significantly
                                                                              exceeded the discretion available to it, or is it for the
                                                                              referring Austrian court to answer that question.
Reference for a preliminary ruling from the Landesgericht
für Zivilrechtsachen (Regional Civil Court) — by order of
that court of 7 May 2001 in the case of Dr. Gerhard
                  Köbler v Republic of Austria
                         (Case C-224/01)
                         (2001/C 212/32)
                                                                        Action brought on 6 June 2001 by the Commission of the
Reference has been made to the Court of Justice of the                  European Communities against the Kingdom of Denmark
European Communities by an order of the Landesgericht für
Zivilrechtsachen of 7 May 2001, which was received at the                                         (Case C-226/01)
Court Registry on 6 June 2001, for a preliminary ruling in the
case of Dr. Gerhard Köbler v Republic of Austria on the
following questions:                                                                              (2001/C 212/33)
1.    Is the case-law of the Court of Justice to the effect that it
      is immaterial as regards State liability for a breach of          An action against the Kingdom of Denmark was brought
      Community law which institution of a Member State is              before the Court of Justice of the European Communities on
      responsible for that breach (see Joined Cases C-46/93 and         6 June 2001 by the Commission of the European Communi-
      C-48/93 Factortame [1996 ECR I-1029) also applicable              ties, represented by Hans Støvlbæk, acting as Agent, with an
      when the conduct of an institution purportedly contrary           address for service in Luxembourg.
 ---pagebreak--- 28.7.2001              EN                      Official Journal of the European Communities                                      C 212/19
The applicant claims that the Court should:                               Action brought on 7 June 2001 by the Commission of the
                                                                            European Communities against the Kingdom of Spain
—     Declare that, by failing to adopt the measures necessary
      to guarantee the quality of bathing water in accordance
      with the limit values in Directive 76/160/EEC (1) and by                                    (Case C-227/01)
      failing to comply with the minimum frequency of
      sampling operations, as required under that directive, the
      Kingdom of Denmark has failed, within the terms of                                          (2001/C 212/34)
      Article 226 EC, to fulfil its obligations under Articles 4(1)
      and 6(1) of Directive 76/160/EEC concerning the quality
      of bathing water;                                                   An action against the Kingdom of Spain was brought before
                                                                          the Court of Justice of the European Communities on 7 June
                                                                          2001 by the Commission of the European Communities,
—     order the Kingdom of Denmark to pay the costs of the
                                                                          represented by Gregorio Valero Jordana, with an address for
      present proceedings.
                                                                          service in Luxembourg at the office of Gérard Berscheid,
                                                                          Wagner Centre C 254.
                                                                          The applicant claims that the Court of Justice should:
Pleas in law and main arguments
                                                                          —     declare that by not carrying out an environmental impact
                                                                                assessment in connection with the ‘Valencia Tarragona
—     Article 4(1) of the directive, in conjunction with Articles 3             railway project, Las Palmas-Oropesa section. Platform’, a
      and 5(1) thereof, requires Member States to take measures                 project forming part of that known as the ‘Mediterranean
      to ensure that a specific result is achieved before the                   Corridor’, the Kingdom of Spain has failed to fulfil its
      expiry of a set period (10 December 1985), and, apart                     obligations under Articles 2, 3, 5(2) and 6(2) of Council
      from the exceptions laid down in the directive, a Member                  Directive 85/337/EEC (1) of 27 June 1985 on the assess-
      State cannot plead special circumstances as a ground for                  ment of the effects of certain public and private projects
      failure to comply with that obligation. It follows that                   on the environment;
      Denmark cannot successfully argue that compliance with
      the directive is satisfied if it simply adopts measures with        —     order the Kingdom of Spain to pay the costs.
      a view to complying therewith. Denmark cannot invoke
      Article 5(2) as a ground for adjusting compliance percent-
      ages in respect of ’fortuitous excesses’ deemed to result
      from pollution by animals or heavy rain, inasmuch as                Pleas in law and main arguments
      those conditions, which are in no wise documented,
      cannot be regarded as constituting abnormal weather
      conditions.
                                                                          Failure to comply with Directive 85/337/EEC in preparing
                                                                          the railway project: The project was not subjected to the
—     Obligation under Article 6(1): the Commission can accept            environmental impact assessment provided for in the directive,
      that the directive provides the possibility of reducing the         which was compulsory in this instance as the project was one
      number of sampling operations. However, with regard to              of those referred to in Point 7 of Annex I to the directive. The
      the 11 specific bathing areas in respect of which the               section of railway to which the present action relates involves
      Commission requested more detailed information, Den-                the construction of a line for long-distance railway traffic in at
      mark has merely provided documentation stating that                 least two senses: duplication of the existing line and construc-
      the Danish rules, under which the number of sampling                tion of a new line in the municipal terminal of Benicassim.
      operations may be reduced by a factor of 2, that is to say,         The Commission considers that the fact that the General
      from 10 to 5, if the quality of the bathing water has, over         Development Plan for Benicassim was the subject of an impact
      the course of two successive bathing seasons, been of               assessment does not excuse the Spanish Government from
      better quality than that prescribed in the directive, had           subjecting the railway project to which the present action
      been complied with in three cases.                                  relates to the impact assessment procedure. Having regard to
                                                                          the lack of detail in which that Plan refers to the route of the
                                                                          Las Palmas-Oropesa railway section and the non-existence of
                                                                          studies into the effects of the project on the environment, a
(1) Council Directive of 8 December 1975 concerning the quality of        specific environmental impact procedure was necessary in
    bathing water, OJ 1975 L 31, p. 1.                                    order to comply with the obligations arising under Directive
                                                                          85/337/EEC.
                                                                          Last, the Commission considers that the Environmental Impact
                                                                          Study drawn up in connection with the drafting of Amendment
                                                                          No 3 to the Construction Project not only covered only part