CELEX: C1997/212/23
Language: en
Date: 1997-07-12 00:00:00
Title: Action brought on 30 April 1997 by the Commission of the European Communities against the French Republic (Case C-166/97)

12 . 7 . 97                  EN                  Official Journal of the European Communities                               No C 212/ 13
part in maintaining the fundamental balances of our                         Admittedly, at that time Article 130s involved only the
environment, particularly as regards soil, water, climate,                  'consultation' procedure, as did Article 43 of the Treaty.
fauna and flora . It is in contradiction to the preambles to                The first Regulation in that field, Council Regulation
those Regulations that the contested Regulation, which                      ( EEC ) No 3529/86 of 17 November 1986 on protection of
merely extends the existing provisions for five years,                      the Community's forests against fire ( 3 ), adopted before
mentions in its preamble that the protection of forests                     the entry into force of the Single European Act, had
against atmospheric pollution and certain unfavourable                      Articles 43 and 235 of the Treaty as its legal basis .
meteorological factors contributes directly to the
achievement of the objectives laid down in Article 39 ( 1 )
( b ) of the EC Treaty.                                                     From its content, it is clear that the contested Regulation
                                                                            concerns environmental protection. The measures which it
(')   OJ  No  L  51 , 21 . 2 . 1997, p . 9 .                                extends — in particular identification of the causes of
(2)   OJ  No  L  326 , 21 . 11 . 1986, p . 2 .                              fires, creation or improvement of systems of prevention,
(3)   OJ  No  L  165 , 15 . 6 . 1989, p . 8 .                               training of specialized personnel, analytical studies and
(4)   OJ  No   L 217, 31 . 7. 1992 , p . 1 .                                pilot projects to test new techniques and fire-fighting
                                                                            methods — are strictly linked to forests and their
                                                                            protection . Their aim is the protection of forests. Such
                                                                            measures cannot fall within the scope of the common
                                                                            agricultural policy. They are of no relevance to the
                                                                            products concerned by Articles 38 to 46 of the EC Treaty,
                                                                            namely those listed in Annex II to the Treaty. The
Action brought on 30 April 1997 by the European                             measures concerned fall within the scope of Article 130r
     Parliament against the Council of the European Union                   of the Treaty.
                                Case C-165 /97
                                 ( 97/C 212/22 )
                                                                            The stated objectives of Regulation ( EEC ) No 2158/92
                                                                             and its predecessor are the protection against fire and the
An action against the Council of the European Union was                      preservation of forest resources, which play an essential
 brought before the Court of Justice of the European                         part in maintaining the fundamental balances of our
 Communities on 30 April 1997 by the European                                environment, particularly as regards soil , water, climate,
 Parliament, represented by Johann Schoo, Head of                            fauna and flora . It is only as an ancillary matter that their
 Division in its Legal Service, and Joao Sant'Anna, of its                   preambles mention the safeguarding of the various
                                                                             functions which forests fulfil in rural areas . It is in
 Legal Service, acting as Agents, with an address for service
 in Luxembourg at its General Secretariat, Mail and                          contradiction to the preambles of those Regulations that
 Registry Service, Tower Building, Office 017.                               the contested Regulation, which merely extends the
                                                                             existing provisions for five years, mentions in its preamble
                                                                             that protecting forests against fire directly contributes to
 The European Parliament claims that the Court should :                      the achievement of the objectives laid down in Article 39
                                                                             ( 1 ) ( b ) of the EC Treaty.
 — annul, pursuant to Article 173 of the EC Treaty,
       Regulation ( EC ) No 308/97 ('), amending Regulation                  (') OJ No L 51 , 21 . 2 . 1997, p . 11 .
       ( EEC ) No 2158/92 ( 2 ) on the protection of the                     ( 2 ) OJ No L 217, 31 . 7 . 1992 , p . 3 .
       Community's forests against fire, and                                  (•') OJ No L 326 , 21 . 11 . 1986 , p. 5 .
 — order the Council of the European Union to pay the
       costs .
  Pleas in law and main arguments adduced in support:
                                                                              Action brought on 30 April 1997 by the Commission of
                                                                                  the European Communities against the French Republic
  The contested Regulation, which extends until
  31 December 2001 the duration of the scheme provided                                                  ( Case C-166/97)
  for by Council Regulation (EEC ) No 2158/92 of 23 July                                                   ( 97/C 212/23 )
  1992 on the protection of the Community's forests against
  fire, was adopted on the sole basis of Article 43 of the EC
  Treaty, relating to the common agricultural policy, which
  provides that the European Parliament is to be consulted .                   An action against the French Republic was brought before
  The legal basis for the Regulation should, however, have                     the Court of Justice of the European Communities on
  been Article 130s of the Treaty, relating to environmental                   30 April 1997 by the Commission of the European
  policy, which provides for the 'cooperation' procedure                       Communities, represented by Richard B. Wainwright,
  between the Council and the Parliament .                                     Legal Adviser, and Jean-Francis Pasquier, a national civil
                                                                               servant seconded to the Commission's Legal Service,
                                                                               acting as Agents, with an address for service in
  Regulation ( EEC ) No 2158/92 was itself adopted on the                      Luxembourg at the office of Carlos Gomez de la Cruz,
  legal basis of Articles 43 and 130s of the EC Treaty.                        Wagner Centre, Kirchberg.
 ---pagebreak--- No C 212/ 14           EN                    Official Journal of the European Communities                                            12 . 7 . 97
The applicant claims that the Court should :                            provisions . The purpose of the agreement is not even to
                                                                        protect the natural environment.
— declare that, by failing to adopt special conservation
     measures concerning the habitats of birds in the Seine             Breach of Article 4 ( 4 ) of the Directive
     estuary and to take appropriate steps to avoid
     deterioration of those habitats, the French Republic               The establishment of a plant for the treatment            and deposit
     has failed to fulfil its obligations under Directive 79/           of titanogypsum in the estuary constitutes                a manifest
     409/EEC ( 1 ),
                                                                        deterioration of the habitat in question . No             importance
                                                                        can be attached to the fact that the plant is             outside the
— order the French Republic to pay the costs .                          area designated a SPA. The plant is in an                 area which
                                                                        should have been designated a SPA.
Pleas in law and main arguments adduced in support:                     (') Council Directive 79/409/EEC of 2 April 1979 on the
                                                                             conservation of wild birds ( OJ No L 103 , 25 . 4 . 1979 , p. 1 ).
The Seine estuary is one of the most important wetland
areas on the French coast from the ornithological point of
view and is visited by numerous species listed in Annex I
to Directive 79/409/EEC on the conservation of wild
birds . According to a scientific inventory of important
areas for the conservation of birds ( Zones Importantes                 Reference for a preliminary ruling by the Tribunal du
pour la conservation des Oiseaux ( ZICO )) published in                 Travail de Bruxelles, by judgment of that court of 21 April
1994 under the auspices of the French Ministry of the                   1997, in the case of Barry Bank and Others against the
Environment, an area covering 21 900 hectares in the                                         Theatre Royal de la Monnaie
Seine estuary is identified as a site of major interest                                              Case C-178/97)
harbouring a number of wild birds regarded as being of
Community or international significance according to                                                  ( 97/C 212/24 )
classification criteria corresponding to those contained in
Directive 79/409/EEC .
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by judgment of the Tribunal du
Breach       of     Article    4    (1 )   and     (2)   of   the       Travail de Bruxelles ( Brussels Labour Court ) of 21 April
Directive
                                                                        1997, received at the Court Registry on 7 May 1997, for
                                                                        a preliminary ruling in the case of Barry Bank and Others
The French authorities concluded an agreement with the                  against the Theatre Royal de la Monnaie on the following
                                                                        questions:
independent ports of Le Havre and Rouen to create a
reserve area of 3 350 hectares, made up of 2 000 hectares
of predominantly ecological interest and 1 300 hectares                 I.     1 . Does the concept of 'work' in Article 14a ( 1 ) ( a ) of
for industrial and port use where the natural environment                            Regulation ( EEC ) No 1408/71 (') refer to any
would be preserved until they were used. 2 750 hectares of                           work, whether paid employment or self­
that agreed reserve were designated a special protection                             employment, the duration of which does not
area ( SPA ) within the meaning of the Directive.                                    exceed 12 months ?
The surface of the SPA thus delimited is completely                            2 . If the concept of 'work' within the meaning of
inadequate and bears no relation to the significance of the                          Article 14 ( 1 ) ( a ) refers exclusively to work by a
ornithological site . It is clear from the Court's judgment of                       self-employed person, should this concept be
2 August 1993 in Case C-355/90 ( Commission v. Spain                                 defined by reference to the social security
 [ 1993 ] ECR p. 4221 ), that although Member States have a                          legislation of the Member State in which the
certain margin of discretion with regard to the choice of                            person is normally self-employed or by reference
SPAs, the classification of those areas is nevertheless                              to the social security legislation of the Member
                                                                                     State in which the ' work ' is done ?
subject to certain ornithological criteria determined by the
Directive . A Member State does not comply with those
 criteria and thus fails to fulfil its obligations where it fails       II . What is the relevant unit of time which should be
to classify the parts of a habitat of particular importance                    taken into account in defining the term
 for birds in danger of extinction within the meaning of                       'simultaneously' in Article 14c of Regulation ( EEC )
 Article 4 ( 1 ) ( a ) of the Directive or where it fails to                   No 1408/71 , or by what criteria can this term be
 classify wetlands of special importance for the migratory                     defined ?
 species referred to in Article 4 ( 4 ) of the Directive.
                                                                         III . ( a ) 1 . Does Form E 101 , the issue of which is
 The protection system which results from the reserve                                     provided for, in particular, by Articles 11a and
 which it was agreed to set up is inadequate . A mere                                     12a ( 7) of Regulation ( EEC ) No 2001 /83 (2 ),
 agreement has only legal effects limited to the parties. No                              have binding force as regards the legal
 mechanism is provided to ensure compliance with its                                      consequences attested to therein: