CELEX: C2003/275/56
Language: en
Date: 2003-11-15 00:00:00
Title: Case C-408/03: Action brought on 30 September 2003 by the Commission of the European Communities against the Kingdom of Belgium

15.11.2003              EN                        Official Journal of the European Union                                            C 275/37
Pleas in law and main arguments                                           The Commission of the European Communities claims that
                                                                          the Court should:
Finland has failed to fulfil its obligations under the nature
directive by failing to require in its legislation with sufficient        1.    declare that the Kingdom of Belgium:
legal certainty that an appropriate assessment is to be made in
respect of all projects, including those which are the subject of
an environmental impact assessment. That fact alone suffices                    —     has failed to fulfil its obligations under Article 18
to found the present action.                                                          EC and Directive 90/364/EEC on the right of
                                                                                      residence, by making the right of residence of
                                                                                      citizens of the Union subject to the condition that
Finland took the view in its response to the letter of formal                         they have sufficient personal resources;
notice that if the Environmental Impact Assessment Law
applies to a project, the explanations made in connection with
the environmental impact assessment procedure may be the                        —     has failed to fulfil its obligations under Directive 90/
appropriate assessment within the meaning of Paragraph 65 of                          364/EEC on the right of residence (1), under Article 4
the Nature Protection Law. According to Finland, overlapping                          of Directive 68/360/EEC on the abolition of restric-
procedures are thus prevented. Finland repeated its view in its                       tions on movement and residence within the Com-
reply to the reasoned opinion.                                                        munity for workers of Member States and their
                                                                                      families (2), under Article 4 of Directive 73/148/EEC
                                                                                      on the abolition of restrictions on movement and
In so far as Finland refers to difficulties in practice in                            residence within the Community for nationals of
bringing its legislation into line with its Treaty obligations, the                   Member States with regard to establishment and the
Commission recalls the settled case-law of the Court of Justice                       provision of services (3), under Article 2 of Directive
which says that internal difficulties within the State connected                      93/96/EEC on the right of residence for students, (4)
with the conditions in which laws and regulations are drafted                         and under Article 2 of Directive 90/365/EEC on the
cannot release a Member State from its obligations under                              right of residence for employees and self-employed
Community law. Similarly, in accordance with the settled case-                        persons who have ceased their occupational
law of the Court of Justice, when assessing whether a Member                          activity (5), by providing for the possibility to give
State has failed to fulfil its obligations of membership, regard                      automatic notification of an order to leave the
must be had to the situation of the Member State as it is at the                      country to citizens of the Union who have not
expiry of the time-limit set in the reasoned opinion.                                 produced the documents necessary to obtain a
                                                                                      residence permit within a prescribed period;
As yet, it has not yet come to the knowledge of the Commission
that the necessary measures for aligning national legislation             2.    order the Kingdom of Belgium to pay the costs.
with Article 6(3) of the nature directive have been carried out,
or at least they have not been notified to the Commission.
(1) OJ L 206, 22.7.1992, p. 7.
                                                                          Pleas in law and main arguments
                                                                          The Belgian legislation and administrative practice infringe
                                                                          Community law in that they lay down:
Action brought on 30 September 2003 by the Com-                           —     the condition of possession of sufficient personal
mission of the European Communities against the                                 resources.
                       Kingdom of Belgium
                                                                                Article 1 of Directive 90/364/EEC requires that the citizen
                         (Case C-408/03)                                        of the Union proves that he has, for himself and the
                                                                                members of his family, sufficient resources, but does not
                                                                                require that the resources are his. The Directive introduces
                         (2003/C 275/56)                                        in respect of the host Member State a flexible system of
                                                                                guarantees which evolves over time, intended to allow
                                                                                the citizen of the Union to move easily within the
                                                                                territory of the Member States without having to prove
An action against the Kingdom of Belgium was brought                            that he has means of subsistence for the entire duration
before the Court of Justice of the European Communities on                      of his stay. However, the system of the Belgian authorities
30 September 2003 by the Commission of the European                             seeks to introduce additional guarantees in order to avoid
Communities, represented by M. Condou Durande and D. Mar-                       ab initio the citizen of the Union becoming a burden on
tin, acting as Agents, with an address for service in Luxem-                    the social assistance system, which is inherently contrary
bourg.                                                                          to the spirit of Directive 90/364/EEC.
 ---pagebreak--- C 275/38                EN                        Official Journal of the European Union                                         15.11.2003
—    the possibility of giving notification of an order to leave                ple, the ordering of a specific inspection as to fitness
     the territory to citizens of the Union who have not                        for human consumption or a restriction to certain
     produced the documents necessary for the issue of a                        distribution channels?
     residence permit within the prescribed period.
                                                                          2.    Does the concept of ‘fair marketable quality’ in Article 13
     A Member State may refuse or terminate the right of                        of Commission Regulation (EEC) No 3665/87 of 27 Nov-
     residence of a citizen of the Union only if the conditions                 ember 1987 require that the product to be exported be
     of this right are not or are no longer fulfilled. By contrast,             of average quality, and does it therefore disqualify from
     the fact that the administrative procedures for the grant                  the grant of an export refund a product of inferior quality,
     of the residence permit evidencing the right have not                      which, however, usually appears under the description of
     been complied with may not lead to a penalty such as                       the object of trade given in the refund application? Is that
     refusal to grant the right of residence or removal from                    also the case where the inferior quality has in no way
     the territory, which would effectively deny the actual                     affected the completion of the commercial transaction?
     right of residence conferred and guaranteed by the Treaty.
     The notification of an order to leave the territory may be
     based not on exclusively administrative grounds, but on              (1) OJ L 351, p. 1.
     facts leading to the conclusion that the person concerned
     does not fulfil the conditions set for his right of residence
     by one of the relevant directives.
(1) OJ 1990 L 180, p. 26.
(2) OJ English Special Edition 1968 (II), p. 485.
(3) OJ 1973 L 172, p. 14.                                                 Action brought on 2 October 2003 by the Commission
(4) OJ 1993 L 317, p. 59.                                                         of the European Communities against Ireland
(5) OJ 1990 L 180, p. 28.
                                                                                                   (Case C-413/03)
                                                                                                   (2003/C 275/58)
                                                                          An action against Ireland was brought before the Court of
Reference for a preliminary ruling by the Bundesfinanzh-                  Justice of the European Communities on 2 October 2003 by
of by order of that Court of 15 July 2003 in the                          the Commission of the European Communities, represented
proceedings between SEPA Société d’Exportation de                         by Mr Xavier Lewis, acting as agent, with an address for service
Produits Agricoles S.A. and Hauptzollamt Hamburg-Jonas                    in Luxembourg.
                         (Case C-409/03)                                  The Applicant claims that the Court should:
                         (2003/C 275/57)                                  1)    declare that by failing to adopt the laws, regulations
                                                                                and administrative provisions necessary to comply with
                                                                                Directive 2001/18/EC of the European Parliament and of
                                                                                the Council of 12 March 2001 on the deliberate release
                                                                                into the environment of genetically modified organisms
Reference has been made to the Court of Justice of the
                                                                                and repealing Council Directive 90/220/EEC (1), or by
European Communities by order of the Bundesfinanzhof
                                                                                failing to notify such provisions to the Commission,
(Federal Finance Court) of 15 July 2003, received at the Court
                                                                                Ireland has failed to fulfil its obligations under Article 34
Registry on 1 October 2003, for a preliminary ruling in the
                                                                                of this Directive.
proceedings between SEPA Société d’Exportation de Produits
Agricoles S.A. and Hauptzollamt Hamburg-Jonas on the
following questions:                                                      2)    order Ireland to pay the costs.
1.   Does the concept of ‘fair marketable quality’ in Article 13
     of Commission Regulation (EEC) No 3665/87 (1) of                     Pleas in law and main arguments
     27 November 1987 laying down common detailed rules
     for the application of the system of export refunds on
     agricultural products require that the manufacture and               The period within which the directive had to be transposed
     distribution of the products in question be subject only             expired on 17 October 2002.
     to generally valid legal conditions as they apply to any
     product of that type, and does it consequently disqualify
     from the grant of an export refund a product to which                (1) OJ L 106, 17.4.2001, p. 1.
     special restrictions apply, in particular as regards its
     production, treatment or distribution, such as, for exam-