CELEX: C2004/007/11
Language: en
Date: 2004-01-10 00:00:00
Title: Judgment of the Court of 25 November 2003 in Case C-278/01: Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Judgment of the Court establishing such failure — Non-compliance — Article 228 EC — Financial penalties — Penalty payment — Quality of bathing water — Directive 76/160/EEC)

10.1.2004               EN                           Official Journal of the European Union                                                   C 7/7
      the product that it designates is accorded protection in the           ruling in the criminal proceedings before that court against
      importing Member State, whether or not there is any risk of            Piergiorgio Gambelli and Others on the interpretation of
      consumers being misled, and the import of a product lawfully           Articles 43 EC and 49 EC, the Court, composed of: V. Skouris,
      marketed in another Member State may be prevented.                     President, P. Jann, C.W.A. Timmermans and J.N. Cunha
                                                                             Rodrigues (Presidents of Chambers), D.A.O. Edward (Rappor-
3.    The first paragraph of Article 307 EC is to be interpreted as          teur), R. Schintgen, F. Macken, N. Colneric and S. von Bahr,
      permitting a court of a Member State, subject to the findings to       Judges; S. Alber, Advocate General; H.A. Rühl, Principal
      be made by that court having regard inter alia to the criteria set     Administrator, for the Registrar, has given a judgment on
      out in this judgment, to apply the provisions of bilateral             6 November 2003, in which it has ruled:
      agreements such as those at issue in the main proceedings,
      concluded between that State and a non-member country and
      according protection to a name from the non-member country,            National legislation which prohibits on pain of criminal penalties the
      even where those provisions prove to be contrary to the EC             pursuit of the activities of collecting, taking, booking and forwarding
      Treaty rules, on the ground that they concern an obligation            offers of bets, in particular bets on sporting events, without a licence
      resulting from agreements concluded before the date of the             or authorisation from the Member State concerned constitutes a
      accession of the Member State concerned to the European                restriction on the freedom of establishment and the freedom to provide
      Union. Pending the success of one of the methods referred to in        services provided for in Articles 43 and 49 EC respectively. It is for
      the second paragraph of Article 307 EC in eliminating any              the national court to determine whether such legislation, taking
      incompatibilities between an agreement predating that accession        account of the detailed rules for its application, actually serves the
      and the Treaty, the first paragraph of that article permits that       aims which might justify it, and whether the restrictions it imposes
      State to continue to apply such an agreement in so far as it           are disproportionate in the light of those objectives.
      contains obligations which remain binding on that State under
      international law.
                                                                             (1) OJ C 245 of 1.9.2001.
(1) OJ C 245 of 1.9.2001.
                                                                                                JUDGMENT OF THE COURT
                 JUDGMENT OF THE COURT
                       of 6 November 2003                                                            of 25 November 2003
in Case C-243/01 (Reference for a preliminary ruling from                    in Case C-278/01: Commission of the European Communi-
the Tribunale di Ascoli Piceno): Piergiorgio Gambelli and                                         ties v Kingdom of Spain (1)
                              Others (1)
                                                                             (Failure of a Member State to fulfil obligations — Judgment
(Right of establishment — Freedom to provide services —                      of the Court establishing such failure — Non-compliance —
Collection of bets on sporting events in one Member State                    Article 228 EC — Financial penalties — Penalty payment
and transmission by internet to another Member State —                           — Quality of bathing water — Directive 76/160/EEC)
Prohibition enforced by criminal penalties — Legislation in
a Member State which reserves the right to collect bets to
                           certain bodies)                                                                (2004/C 7/11)
                           (2004/C 7/10)
                                                                                                  (Language of the case: Spanish)
                    (Language of the case: Italian)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                                  in the European Court Reports)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
                                                                             In Case C-278/01, Commission of the European Communities
In Case C-243/01: Reference to the Court under Article 234 EC                (Agent: G. Valero Jordana) v Kingdom of Spain (Agent: S. Ortiz
by the Tribunale di Ascoli Piceno (Italy) for a preliminary                  Vaamonde): Application, first, for a declaration that, by not
 ---pagebreak--- C 7/8                    EN                           Official Journal of the European Union                                             10.1.2004
taking the necessary measures to ensure that the quality of                                    JUDGMENT OF THE COURT
inshore bathing water in Spanish territory conforms to the
limit values set in accordance with Article 3 of Council
Directive 76/160/EEC of 8 December 1975 concerning the                                                  (Fifth Chamber)
quality of bathing water (OJ 1976 L 31, p. 1), notwithstanding
its obligations under Article 4 of that directive, the Kingdom
of Spain has not complied with the judgment of the Court of
Justice in Case C-92/96 Commission v Spain [1998] ECR I-                                             of 6 November 2003
505, and has accordingly failed to fulfil its obligations under
Article 228 EC and, second, for an order that the Kingdom of
Spain be required to pay to the Commission, into the account                  in Case C-293/00: Kingdom of the Netherlands v Com-
‘European Community own resources’, a penalty payment of                                mission of the European Communities (1)
EUR 45 600 per day of delay in adopting the measures
necessary to comply with the said judgment in Commission v
Spain, from the date on which judgment is delivered in this
case until the date on which the said judgment in Commission                  (Annulment of Commission Decision 2000/362/EC of
v Spain is complied with, the Court, composed of: V. Skouris,                 25 May 2000 on the total amount of Community aid for the
President, C.W.A. Timmermans, C. Gulmann and J.N. Cunha                       eradication of classical swine fever in the Netherlands in
Rodrigues (Rapporteur)             (Presidents of Chambers),                                                  1997)
D.A.O. Edward, A. La Pergola, J.-P. Puissochet, R. Schintgen,
F. Macken, N. Colneric and S. von Bahr, Judges; J. Mischo,
Advocate General; L. Hewlett, Principal Administrator, for the                                           (2004/C 7/12)
Registrar, has given a judgment on 25 November 2003, in
which it:
                                                                                                  (Language of the case: Dutch)
1.    Declares that, by not taking the measures necessary to ensure           (Provisional translation; the definitive translation will be published
      that the quality of inshore bathing water in Spanish territory                             in the European Court Reports)
      conforms to the limit values set in accordance with Article 3 of
      Council Directive 76/160/EEC of 8 December 1975 concern-
      ing the quality of bathing water, notwithstanding its obligations
      under Article 4 of that directive, the Kingdom of Spain has not
      taken all the measures necessary to comply with the Court’s
      judgment of 12 February 1998 in Case C-92/96 Commission                 In Case C-293/00, Kingdom of the Netherlands (Agents:
      v Spain and has accordingly failed to fulfil its obligations under      A. Fierstra, C. Wissels and J. G. M. van Bakel) v Commission of
      Article 228 EC.                                                         the European Communities (Agent: T. van Rijn): Application
                                                                              for annulment of Commission Decision 2000/362/EC of
                                                                              25 May 2000 on the total amount of Community aid for the
                                                                              eradication of classical swine fever in the Netherlands in 1997
2.    Orders the Kingdom of Spain to pay to the Commission of the
                                                                              (OJ 2000 L 129, p. 33), in so far as the financial aid granted to
      European Communities, into the account ‘European Community
                                                                              the Netherlands by the Community for the eradication of
      own resources’, a penalty payment of EUR 624 150 per year
                                                                              classical swine fever in 1997 is reduced by 25 % of the
      and per 1 % of bathing areas in Spanish inshore waters which
                                                                              amounts paid to farmers by way of compensation, the Court
      have been found not to conform to the limit values laid down
                                                                              (Fifth Chamber), composed of: C.W.A. Timmermans, President
      under Directive 76/160 for the year in question, as from the
                                                                              of the Fourth Chamber, acting as President of the Fifth
      time when the quality of bathing water achieved in the first
                                                                              Chamber, D.A.O. Edward (Rapporteur) and S. von Bahr,
      bathing season following delivery of this judgment is ascertained
                                                                              Judges; C. Stix-Hackl, Advocate General; M.-F. Contet, Principal
      until the year in which the judgment in Commission v Spain is
                                                                              Administrator, for the Registrar, has given a judgment on
      fully complied with.
                                                                              6 November 2003, in which it:
3.    Orders the Kingdom of Spain to pay the costs.                           1.    Dismisses the application.
                                                                              2.    Orders the Kingdom of the Netherlands to pay the costs.
(1) OJ C 245 of 1.9.2001.
                                                                              (1) OJ C 335 of 25.11.2000.