CELEX: C1995/248/07
Language: en
Date: 1995-09-23 00:00:00
Title: Action brought on 6 July 1995 by the Commission of the European Communities against the Hellenic Republic (Case C-236/95)

No C 248/4              EN                 Official Journal of the European Communities                                     23 . 9 . 95
the reasoned opinion, the Greek authorities forwarded a               reduce pollution of the waters of the Pagassitikos Gulf by
technical report by the Ministry of the Environment, Town             the substances within List II . It should, in addition, have
and Country Planning and Public Works in which details                established quality objectives for the waters of the Gulf in
were set out of the measures taken . That reply did not               question and time-limits for achieving those objectives, and
satisfy the Commission , especially as concerns Directive             it should also have set as a condition for all discharges liable
76/464/EEC . In particular the Commission considered that             to contain any of the substances within List II the issue of
the measures provided for in Article 7 of the Directive, that         prior authorization in which emission standards are to be
is to say in respect of quality objectives and authorization of       laid down .
discharges in which emission standards are to be laid down,
as specified in Article 7 ( 2 ), were completely absent . For         From the evidence and studies available to the Commission
those reasons the Court is requested to declare that the              it would appear that the Greek authorities have not taken
Hellenic Republic is in breach of its obligations under the           the appropriate measures to control and limit the sources of
said Directive .                                                      pollution of the Pagassitikos Gulf, which is an enclosed gulf
                                                                      with a very small outlet into the Aegean and very slow
                                                                      renewal of water .
(') OJ No L 129 , 18 . 5 . 1976 , p . 23 .
                                                                      The Greek authorities accept that there are no specialized
                                                                      programmes and refer to the fact that they have asked the
                                                                      University of the Aegean to undertake a study of the sources
                                                                      discharging toxic substances within List II of Directive
                                                                      76/464/EEC .
Action brought on 5 July 1995 by the Commission of the
     European Communities against the Hellehic Republic               Consequently the Commission notes that the Greek
                         ( Case C-233/95 )                            authorities are in a purely preliminary stage as regards the
                                                                      measures which they are obliged to take under Article 7 of
                           ( 95/C 248/06 )                            the above Directive and accordingly have not fulfilled their
                                                                      obligations thereunder.
An action against the Hellenic Republic was brought before
 the Court of Justice on 5 July 1995 by the Commission                 ( ] ) OJ No L 129 , 18 . 5 . 1976 , p . 23 .
 of the European Communities, represented by Maria
 Kondou-Durande, of its Legal Service , with an address for
 service in Luxembourg at the office of Carlos Gomez de la
 Cruz, also of its Legal Service, Wagner Centre .
 The applicant claims that the Court:                                 Action brought on 6 July 1995 by the Commission of the
                                                                            European Communities against the Hellenic Republic
 ( 1 ) should declare that,                                                                      ( Case C-236/95 )
                                                                                                    ( 95/C 248/07)
        — by failing to establish programmes to include
            quality objectives and to lay down time-limits for
            achieving those objectives, in order to reduce             An action against the Hellenic Republic was brought before
                                                                       the Court of Justice on 6 July 1995 by the Commission of
            pollution of the waters of the Pagassitikos Gulf
            by the substances within List II of Directive              the European Communities, represented by Dimitrios
            76/464/EEC (*) of 4 May 1976 on pollution caused           Gouloussis, of its Legal Service, with an address for service
                                                                       in Luxembourg at the officie of Carlos Gomez de la Cruz,
            by certain dangerous substances discharged into the
                                                                        also of its Legal Service , Wagner Centre .
            aquatic environment of the Community, and
        — by not subjecting discharges into the Pagassitikos           The applicant claims that the Court should:
            Gulf which are liable to contain substances within
            List II to prior authorization by the competent             ( 1 ) declare that by failing to adopt and, in the alternative,
            authority in which emission standards are to be laid              to notify to the Commission within the prescribed
            down,                                                             period the laws, regulations and administrative
                                                                              provisions necessary to comply fully with Council
        the Hellenic Republic has failed to fulfil its obligations            Directive 89/665/EEC (*) of 21 December 1989 on
        under the Treaty and Article 7 of Council Directive                   the coordination of the laws, regulations and
        76/464/EEC;                                                           administrative provisions relating to the application of
                                                                               review procedures to the award of public supply and
  ( 2 ) order the Hellenic Republic to pay the costs .                         public works contracts, in particular, by not adopting
                                                                               and, in the alternative, by not notifying to the
                                                                               Commission within the prescribed period the necessary
  Pleas in law and main arguments adduced in support:                          laws, regulations and administrative provisions
                                                                               relating to the award of public supply contracts, the
  under Article 7 of Directive 76/464/EEC the Republic of                      Hellenic Republic has failed to fulfil its obligations
  Greece should have established programmes in order to                        under the EC Treaty;
 ---pagebreak--- 23 . 9 . 95             EN                   Official Journal of the European Communities                                  No C 248/5
( 2 ) order the Hellenic Republic to pay the costs .                        that surcharge levied since the Member State's accession
                                                                            to the EC Treaty or does it apply only to the increase in
Pleas in law and main arguments adduced in support:                         the surcharge which came into effect after that date ?
Under Article 5 of Directive 89/665/EEC the Member States               5 . Does Community law impose special requirements with
were to have adopted the laws, regulations and                              regard to national rules on the burden of proving that
administrative provisions necessary to comply with the                      the conditions for application of Article 86 of the EC
Directive before 2 1 December 1991 and to communicate the                   Treaty have been satisfied ?
relevant texts to the Commission .
                                                                        6 . If it is assumed that a public undertaking that owns and
The Commission notes that the Hellenic Republic has only                    operates a commercial port occupies a dominant
partially applied the above Directive with regard to public                 position, can it constitute an abuse of that position,
works contracts but that it has taken no steps at all as                    contrary to Article 86 of the Treaty, that the commercial
regards public supply contracts . In reply to the reasoned                  port levied the duties described above and laid down by
opinion, the Greek authorities informed the Commission                      the Minister for Transport for the use of public and
that they had drawn up a draft Presidential Order to                        private commercial ports ?
incorporate the Directive fully into the Greek legal order.
Since, however, that Presidential Order has not yet been                7. If question 6 is answered in the affirmative : do the
issued, the Commission decided to lodge the present                         persons or undertakings on whom the duty was imposed
application .                                                               have any right under Community law to seek
                                                                            reimbursement or compensation ?
(!) OJ No L 395 , 30 . 12 . 1989 , p . 33 .
                                                                        8 . If it is assumed that a public undertaking that owns and
                                                                            operates a commercial port occupies a dominant
                                                                            position , can an abuse of that position, contrary to
                                                                            Article 86 of the Treaty, lie in the fact that the
                                                                            commercial port does not impose the port duties
                                                                            described in this order for reference on its own ferry
Reference for a preliminary ruling by the 0stre Landsretby                  route or on that of its cooperation partner ?
decision of that court of 30 June 1995 in the Case of
            GT-Link A/S v. Danske Statsbaner DSB
                                                                        9 . If the answers to questions 1 , 2, 4 , 6 and/or 8 are in the
                         ( Case C-242/95 )                                  affirmative : can the particular duties and tasks assigned
                           ( 95/C 248/08 )                                  to the defendant result in a finding that the situation is
                                                                            none the less permissible under Article 90 ( 2 ) of the
                                                                            Treaty ?
Reference has been made to the Court of Justice of the
European Communities by decision of the 0stre Landsret
( Eastern Regional Court) by decision of 30 June 1995 ,
which was received at the Court Registry on 11 July 1995 ,
for a preliminary ruling in the case of GT-Link A/S v. Danske
Statsbaner DSB on the following questions :
                                                                        Reference for a preliminary ruling from the Conseil d'Etatoi
1 . is a special surcharge of 40 % of a goods duty which, as            the Kingdom of Belgium ( Sixth Chamber ) by judgment of
      described in this order for reference , is ordinarily levied      that court of 14 June 1995 in the case of Myrianne Coen
      for the use of ports authorized by the Danish Minister                                    v. Belgian State
      for Transport to operate as commercial ports to be                                       ( Case C-246/95 )
      regarded as coming under the EC Treaty rules on the
      Customs Union, including Articles 9 to 13 , or under                                       ( 95/C 248/09 )
      Article 95 of that Treaty ?
                                                                        Reference has been made to the Court of Justice of the
2 . Are the EC Treaty rules on the Customs Union,                       European Communities by a judgment of the Conseil d'Etat
      including Articles 9 to 13 , or Article 95 to be understood       ( Council of State ) of the Kingdom of Belgium ( Sixth
      as meaning that it is incompatible with those provisions          Chamber ) of 14 june 1995 , which was received at the Court
      to impose a special surcharge of 40 % of the goods duty           Registry on 17 July 1995 , for a preliminary ruling in the case
      ordinarily levied if that surcharge is imposed exclusively        of Myrianne Coen v. Belgian State on the following
      on goods imported from outside Denmark ?                          questions :
3 . If question 2 is answered in the affirmative : under what           ' On a proper cobstruction of the fifth paragraph of
      circumstances can such a duty be justified on the ground          Article 1 73 of the Treaty of Rome, with respect to the period
      that it represents consideration for a service provided or        of two months prescribed therein for contesting a Decision
      on grounds of transport policy pursuant to the Title in           of the Commission, may a decision of a court of a Member
      the EC Treaty dealing with transport ?                            State, finding an act of the State concerned unlawful , cause
                                                                        time to start running again where the act in question may
4 . If the special surcharge is held to be incompatible with            have influenced the Decision of the Commission which it is
      the EC Treaty, does that finding apply to the whole of            sought to contest ?'