CELEX: C2004/059/26
Language: en
Date: 2004-03-06 00:00:00
Title: Case C-6/04: Action brought on 9 January 2004 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland

C 59/16                EN                          Official Journal of the European Union                                           6.3.2004
Action brought on 9 January 2004 by the Commission of                      mission considers that the United Kingdom legislation does
the European Communities against the United Kingdom                        not properly transpose these provisions in three specific
            of Great Britain and Northern Ireland                          regards. National legislation is indequate with regard to water
                                                                           abstraction plans and projects, land use plans and, in respect
                                                                           of Gibraltar, the review of existing planning rights.
                            (Case C-6/04)
                           (2004/C 59/26)
                                                                           Articles 11 and 14(2)
                                                                           Article 11 of the Directive imposes a requirement on Member
An action against the United Kingdom of Great Britain and                  States to undertake surveillance of the conservation status of
Northern Ireland was brought before the Court of Justice of                priority habitats or priority species. The United Kingdom has
the European Communities on 9 January 2004 by the                          not specifically transposed this obligation. Until this provision
Commission of the European Communities, represented by                     is transposed, and this duty is clearly assigned to the competent
L. Flynn and M. van Beek, acting as agents, with an address for            authorities, the Commission is unable to establish whether
service in Luxembourg.                                                     such surveillance is carried out. The same point arises in
                                                                           Article 14(2) of the Directive, which requires that where
                                                                           measures are deemed necessary, they shall include continu-
                                                                           ation of the surveillance provided for in Article 11 of the
The Applicant claims that the Court should:                                Directive.
—     declare that, by failing to correctly transpose the require-
      ments of Council Directive 92/43/EEC (1) on the conser-
      vation of natural habitats and of wild fauna and flora, the          Article 12(1)(d)
      United Kingdom of Great Britain and Northern Ireland
      has failed to fulfil its obligations under that directive; and
                                                                           The transposing legislation for Great Britain and for Northern
—     order the United Kingdom to pay the costs.                           Ireland fails to provide for the obligation to take requisite
                                                                           measures to establish a system of strict protection prohibiting
                                                                           the deterioration of breeding sites or resting places as required
                                                                           by Article 12(1)(d) of the Directive.
Pleas in law and main arguments
                                                                           Furthermore, with regard to Gibraltar, the enforcement powers
                                                                           foreseen in the NPO 1991 are inadequate to ensure the
                                                                           protection required by Article 12(1) of the Directive.
Article 6(2)
Whilst the United Kingdom has adopted provisions                           Article 12(4)
implementing this provision with regard to controlling poten-
tially disturbing operations, there are not provisions for all
parts of the United Kingdom which enable the competent                     Article 12(4) requires the monitoring of incidental capture and
authority to take steps to avoid the deterioration of a site. The          killing. The United Kingdom’s transposing measures contain
Commission considers that the United Kingdom has therefore                 no provisions requiring the establishment of such a monitoring
failed to fully implement Article 6(2) of the Directive to protect         system. In the absence of further information, the Commission
a designated site from deterioration due to neglect or inactivity          is unable to establish whether such monitoring is carried out.
rather than a potentially damaging operation.
                                                                           Article 13(1)
Article 6(3) and 6(4)
                                                                           Article 13(1) of the Directive requires the prohibition of the
Article 6(3) of the Directive concerns plans or projects likely            keeping, transport and sales or exchange and offering for sale
to have a significant effect on a site, for which a two-fold test          or exchange of specimens of plant species taken from the wild,
is introduced. Such plans or projects must be assessed for                 except for those taken legally before this Directive was
adverse effects on the integrity of the site following public              implemented. Once again, the Commission considers that the
consultation. Article 6(4) then requires compensatory                      national measures transposing this prohibition fail to comply
measures to be taken under certain circumstances. The Com-                 with the temporal limitation on that defence.
 ---pagebreak--- 6.3.2004               EN                       Official Journal of the European Union                                               C 59/17
Article 15                                                              Does a foreign taxpayer resident in a Member State, such as
                                                                        Germany, who is not entitled to the benefits afforded by the
Article 15 of the Directive, which requires the introduction of         Netherlands-Germany Tax Convention because he does not
a general prohibition on indiscriminate capture and killing has         satisfy the condition, laid down in that regard, that he receive
been implemented by regulation 41 of the C(NH)R 1994,                   at least 90% of his income in the Netherlands, have the right,
regulation 36(2) of the C(NH)R(NI)1995 and section 17V(2)               by virtue of EC law, to receive from the Netherlands the tax-
of the NPO 1991. These provisions make it an offence to use             free allowance and tax credit for income tax in the calculation
any of the means of capture and killing listed in Annex VI(a)           of his income from savings and investments if a foreign
and Annex VI(b) of the Directive. The Commission considers              taxpayer who in resident in another Member State, in this case
that this transposition method fails to incorporate a general           Belgium, has the right to such benefits in the calculation of his
prohibition as is required by Article 15.                               income from savings and investments by virtue of the
                                                                        Netherlands-Belgium Tax Convention (and the decision of the
                                                                        State Secretary for Finance of 21 February 2002, No CPP
                                                                        2001/2745, BNB 2002/164) despite the fact that he does not
Article 16                                                              receive at least 90 % of his income in the Netherlands?
Article 16(1) of the Directive permits derogations from the
prohibitions under Articles 12, 13, 14 and 15(a) and (b) of the
Directive in certain circumstances. Such derogations are subject
to two pre-conditions in the opening paragraph of
Article 16(1), namely that there is no satisfactory alternative
and that the derogation is not detrimental to the maintenance
of the populations of the species concerned at a favourable
conservation status in their natural range. The Commission
                                                                        Reference for a preliminary ruling by the Hoge Raad der
considers that the national measures providing for these
                                                                        Nederlanden by judgment of that Court of 23 December
derogations do not adequately transpose these pre-conditions.
                                                                               2003 in the case of in the criminal case against
                                                                                                      Geharo B.V.
Application of the Directive beyond territorial waters
                                                                                                     (Case C-9/04)
The Commission considers that the Directive applies beyond
the territorial waters. Specifically, the United Kingdom has
failed to transpose the obligations to designate special areas of                                   (2004/C 59/28)
conservation under Article 4 of the Directive and to provide
species protection under Article 12 of the Directive inasmuch
as the transposing legislation does not apply beyond the
United Kingdom’s territorial waters.                                    Reference has been made to the Court of Justice of the
                                                                        European Communities by judgment of the Hoge Raad
(1) of 21 May 1992 (OJ 1992 L 206, p. 7).                               der Nederlanden (Supreme Court of the Netherlands) of
                                                                        23 December 2003, received at the Court Registry on 12 Janu-
                                                                        ary 2004, for a preliminary ruling in the case of in the criminal
                                                                        case against Geharo B.V. on the following question:
                                                                        Does the second sentence of Article 1 of Directive 91/338/
Reference for a preliminary ruling by the Gerechtshof                   EEC (1) (cadmium directive) preclude the application of the
Herzogenbusch by judgment of that Court of 8 January                    rules in that directive regarding the cadmium content of
2004 in the case of E. Bujura against Inspecteur van de                 (finished) products and components, as set out in the Annex
  Belastingdienst Limburg / Kantoor Buitenland, Heerlen                 thereto, to toys within the meaning of Directive 88/378/
                                                                        EEC (2) (toy safety directive)?
                          (Case C-8/04)
                                                                        (1) Council Directive 91/338/EEC of 18 June 1991 amending for the
                         (2004/C 59/27)                                     10th time Directive 76/769/EEC on the approximation of the
                                                                            laws, regulations and administrative provisions of the Member
                                                                            States relating to restrictions on the marketing and use of certain
                                                                            dangerous substances and preparations (OJ L 186 of 12.07.1991,
Reference has been made to the Court of Justice of the                      p. 59 — Corrigendum in OJ L 253, 10.9.1991, p. 26).
European Communities by judgment of the Gerechtshof                     (2) Council Directive 88/378/EEC of 3 May 1988 on the approxi-
Herzogenbusch (s-Hertogenbosch Regional Court of Appeal)                    mation of the laws of the Member States concerning the safety of
of 8 January 2004, received at the Court Registry on 12 January             toys (OJ L 187 of 16.07.1988, p. 1).
2004, for a preliminary ruling in the case of E. Bujura
against Inspecteur van de Belastingdienst Limburg / Kantoor
Buitenland, Heerlen on the following question: