CELEX: C2001/245/31
Language: en
Date: 2001-09-01 00:00:00
Title: Case C-282/01: Action brought on 17 July 2001 by the Commission of the European Communities against the Portuguese Republic

C 245/18              EN                      Official Journal of the European Communities                                          1.9.2001
Under Article 12(4) the Member States are to establish a                 The applicant claims that the Court should:
system to monitor the incidental capture and killing of the
animal species listed in Annex IV(a). The Swedish legislation            —     Declare that, by failing to adopt and bring into force
does not cover all the species listed in Annex IV(a).                          within the prescribed period the laws, regulations and
                                                                               administrative provisions necessary to comply with
                                                                               Council Directive 98/18/EC (1) of 17 March 1998 on
Under Article 15 Member States are required to prohibit the                    safety rules and standards for passenger ships, the Portu-
use of methods and forms of capture etc listed in Annex VI of                  guese Republic has failed to fulfil its obligations under
the species listed in Annex Va, and in cases where, in                         the third paragraph of Article 249 of the EC Treaty and
accordance with Article 16, derogations are applied, of the                    Article 14 of Directive 98/18/EC;
species listed in Annex IVa. The right to derogate from the
prohibition in Article 15 is limited to the situations listed in         —     in the alternative, declare that, by failing to communicate
Article 16. Under Swedish law, however, the government and                     such measures to the Commission, the Portuguese Repub-
authorities have a right to investigate freely in certain cases                lic failed to fulfil its obligations under the same provisions;
where derogations are to be granted from the rules on                          and
prohibition laid down by Article 15.
                                                                         —     Order the Portuguese Republic to pay the costs.
Article 16(1) lists the situations in which it is possible to
derogate from the rules in Articles 12 to 14 and 15(a) and (b).          Pleas in law and main arguments
A general condition for allowing a derogation is that there is
no satisfactory alternative and that the derogation is not
detrimental to the maintenance of the populations of the                 The mandatory nature of the provisions of the third paragraph
species concerned at a favourable conservation status in their           of Article 249 requires Member States to adopt the measures
natural range. In addition, one of the reasons in Article 12(1)(a)       necessary to transpose directives addressed to them into their
to (e) must obtain. For reasons of legal certainty it is necessary       domestic law. Despite the expiry of that period, which is laid
that the situations and requirements set out in a rule on                down in Article 14(1) of Directive 98/18/EC, and despite the
derogation such as Article 16 be transposed verbatim into                specific notification requirement provided for in Article 4(2)
national rules or that there be a direct reference to the directive.     of the directive, the Portuguese Republic has not brought into
Under the Swedish legislation the government can allow                   force the necessary provisions and, in any event, has not
derogations on the basis of various considerations. The                  communicated them to the Commission.
Swedish rules on derogation therefore do not conform to
Article 16 and nor do they refer to those provisions in the
directive.                                                               (1) OJ 1998 L 144, p. 1.
(1) OJ L 206, 22.7.1992, p. 7.
(2) OJ L 305, 8.11.1997, p. 42.
                                                                         Action brought on 19 July 2001 by the Commission of
                                                                          the European Communities against the French Republic
                                                                                                      (Case C-286/01)
                                                                                                      (2001/C 245/32)
Action brought on 17 July 2001 by the Commission
of the European Communities against the Portuguese                       An action against the French Republic was brought before the
                             Republic                                    Court of Justice of the European Communities on 19 July
                                                                         2001 by the Commission of the European Communities,
                                                                         represented by P. Nemitz and B. Mongin, acting as Agents.
                         (Case C-282/01)
                                                                         The applicant claims that the Court should:
                        (2001/C 245/31)
                                                                         —     Declare that, by failing to adopt and bring into force
                                                                               within the prescribed period the laws, regulations and
An action against the Portuguese Republic was brought before                   administrative provisions necessary to comply with
the Court of Justice of the European Communities on 17 July                    Directive 98/10/EC (1), and in particular Article 6(3) and
2001 by the Commission of the European Communities,                            (4) and Articles 10, 21 and 26, the French Republic has
represented by Bernard Mongin and Francisco de Sousa Fialho,                   failed to fulfil its obligations under Article 32 of that
acting as Agents.                                                              directive and Article 249 of the EC Treaty; and