CELEX: C2000/316/37
Language: en
Date: 2000-11-04 00:00:00
Title: Case C-369/00: Action brought on 9 October 2000 by the Kingdom of the Netherlands against the Council of the European Union

4.11.2000                EN                     Official Journal of the European Communities                                     C 316/19
Action brought on 25 September 2000 by the Com-                            Action brought on 3 October 2000 by the Commission
mission of the European Communities against the                            of the European Communities against the Grand Duchy
                         Kingdom of Spain                                                             of Luxembourg
                                                                                                      (Case C-366/00)
                          (Case C-354/00)
                                                                                                      (2000/C 316/36)
                          (2000/C 316/35)
                                                                           An action against the Grand Duchy of Luxembourg was
                                                                           brought before the Court of Justice of the European Communi-
                                                                           ties on 3 October 2000 by the Commission of the European
An action against the Kingdom of Spain was brought before                  Communities, represented by Roland Tricot, of its Legal
the Court of Justice of the European Communities on 25 Sep-                Service, and Panayotis Panayatopoulos, a national civil servant
tember 2000 by the Commission of the European Communi-                     seconded to the Legal Service, acting as Agents, with an
ties, represented by G. Valero Jordana, of its Legal Service,              address for service in Luxembourg at the office of Carlos
acting as Agent, with an address for service in Luxembourg at              Gómez de la Cruz, also of the Commission’s Legal Service,
the office of C. Gómez de la Cruz, also of its Legal Service,             Wagner Centre, Kirchberg.
Wagner Centre.
                                                                           The applicant claims that the Court should:
The applicant claims that the Court should:                                —     Declare that, by failing to adopt, or, in the alternative,
                                                                                 failing to inform the Commission of, the laws, regulations
                                                                                 and administrative provisions which are necessary in
1.    declare that, by failing to classify as special protection
                                                                                 order fully to comply with Council Directive 97/11/EC of
      areas for birds in the Comunidad de Murcia the areas
                                                                                 3 March 1997 amending Directive 85/337/EEC on the
      identified by scientific evidence as most suitable for the
                                                                                 assessment of the effects of certain public and private
      conservation of protected species, the Kingdom of Spain
                                                                                 projects on the environment (1), the Grand Duchy of
      has failed to fulfil its obligations under Article 4(1) of
                                                                                 Luxembourg has failed to fulfil its obligations under the
      Council Directive 79/409/EEC (1) on the conservation of
                                                                                 EC Treaty;
      wild birds;
                                                                           —     Order the Grand Duchy of Luxembourg to pay the costs.
2.    order the Kingdom of Spain to pay the costs.
                                                                           Pleas in law and main arguments
                                                                           The pleas in law and main arguments correspond to those in
Pleas in law and main arguments
                                                                           Case C-335/00 (2); the period for transposition laid down by
                                                                           Article 3 of Directive 97/11/EC expired on 14 March 1999.
The Commission considers that the judgment of the Court of
Justice in Case C-3/96 (2) supports the use in this instance of            (1) OJ L 73, 14.3.1997, p. 5.
the list drawn up by the Sociedad Española de Ornitologia                 (2) See p. 16 of this Official Journal.
(Spanish Ornithological Society, ‘the SEO’) for the purpose of
deciding which areas must be designated Special Protection
Areas for Birds (SPABs) in Murcia. The Commission therefore
considers classification of the territories of the Comunidad
Autónoma de Murcia as SPABs (3) to be essential, unless the
Spanish authorities had provided, which they did not, scientific
data other than those in the list concerned.                               Action brought on 9 October 2000 by the Kingdom of
                                                                           the Netherlands against the Council of the European
                                                                                                            Union
(1) OJ L 103 of 25 April 1979, p. 1.
(2) Judgment of 19 May 1998 in Case C-3/96 Commission v                                               (Case C-369/00)
    Netherlands [1998] ECR I-3031.
(3) In all, only 31 701 hectares of the 291 083 hectares recognised                                   (2000/C 316/37)
    in the SEO’s inventory, that is to say, only 10,2 % of the area of
    the territories listed as Important Areas for Birds have been
    declared to be SPAPs.                                                  An action against the Council of the European Union was
                                                                           brought before the Court of Justice of the European Communi-
                                                                           ties on 9 October 2000 by the Kingdom of the Netherlands,
                                                                           represented by Marc Fierstra, Head of the European Law
                                                                           Department in the Ministry of Foreign Affairs, The Hague,
                                                                           acting as Agent.
 ---pagebreak--- C 316/20               EN                    Official Journal of the European Communities                                          4.11.2000
The applicant claims that the Court should:                             —      Infringement of Article 255 EC:
1.    Annul Decision 2000/527/EC;                                              —     In the first place, Decision 2000/527/EC was not
                                                                                     adopted in accordance with the procedure in
2.    Order the Council to pay the costs.                                            Article 251 EC. The decision is not based on a
                                                                                     proposal emanating from the Commission. Decision
                                                                                     2000/527/EC was not adopted by the European
Pleas in law and main arguments                                                      Parliament and the Council.
                                                                               —     Second, Decision 2000/527/EC does not deal with
—     Lack of competence and infringement of essential pro-                          general principles and limits on grounds of public
      cedural requirements:                                                          or private interest governing the right of access to
                                                                                     documents. Decision 2000/527/EC does not indi-
      —     Decision 2000/527/EC (1) fails to take account of                        cate the conditions under which that right can be
            the fact that, as from 1 May 1999, Article 255 EC                        exercised but excludes entirely one category of
            alone can constitute the legal basis for rules govern-                   documents.
            ing public access to documents. By basing Decision
            2000/527/EC on Article 207 EC and adopting it in                         Both from the wording of Article 255 EC and from
            accordance with the procedure set out in that article,                   Articles 255 EC and 28 TEU, read in conjunction, it
            the Council has infringed the prerogatives of the                        is clear that Community law does not provide for
            Commission and of the European Parliament.                               any power under which documents, whether or not
                                                                                     with a specific classification, concerning security or
      —     The Council has also infringed the legal position of                     defence matters of the Union or of one or more of
            the Members of the Council inasmuch as decisions                         its Member States, or relating to military and non-
            taken on the basis of Article 207 EC require an                          military crisis management, may as such be excluded
            absolute majority (Article 205(1) EC), whereas                           from the public right of access. Article 255 EC does
            Article 255 EC, in conjunction with Article 251 EC,                      not in any way exclude the possibility that provision
            provides for decisions to be adopted by qualified                        may be made for refusing access to a document in
            majority.                                                                connection with a specific request. Classification of
                                                                                     information is carried out with an essentially differ-
      The fact that the rules provided for in Article 255 EC                         ent objective to the taking of decisions on requests
      have not yet been established is immaterial; any other                         for authorisation of access to documents. Decision
      interpretation of Article 255 EC would seriously affect                        2000/527/EC thus uses the criteria of the Council
      the efficacy of the provision. Until such time as these new                    Decision (2) for a purpose other than that for which
      rules on openness have been established, in any event                          they are intended.
      until 1 May 2001 at the latest, the rules governing access
      to documents remain those which applied when the                  (1) OJ 2000 L 212, p. 9.
      Treaty of Amsterdam entered into force. Following the             (2) Decision of the Secretary-General of the Council/High Representa-
      entry into force of Article 255 EC, these latter rules can            tive for the Common Foreign and Security Policy of 27 July 2000
      be amended only in accordance with the procedure set                  on measures for the protection of classified information applicable
      out in that provision.                                                to the General Secretariat of the Council (OJ 2000 C 239, p. 1).