CELEX: C1996/077/14
Language: en
Date: 1996-03-16 00:00:00
Title: Reference for preliminary ruling from the Bundesverwaltungsgericht by order of that court of 31 August 1995 in the case of Badische Erfrischungs-Getränke GmbH & Co. KG v. Land Baden-Württemberg (Case C-17/96)

16 . 3 . 96             EN                    Official Journal of the European Communities                                          No C 111
Pleas in law and main arguments:                                         The applicant claims that the Court should :
It is clear from Article 4 ( 1 ) of Directive 79/409/EEC that the        1 . declare that, by failing to adopt and bring into force or,
designation of special protection areas is the primary means                   in the alternative, to notify within the prescribed period
whereby the Member States must ( seek to ) ensure the                          the laws, regulations or administrative provisions
survival and reproduction of the bird species mentioned in                     necessary to comply with Council Directive
Annex I thereto . The fact that in a Member State some                         90/658/EEC (') of 4 December 1990, in particular
populations of such species are declining justifies the                        Article 8 thereof, and those necessary to comply with
suspicion that the Member State has not complied with its                      Directive 93/16/EEC ( 2 ) of 5 April 1993 , in particular
obligation to achieve the appropriate result. In fact, in the                  Articles 3 and 9(3 ) and ( 4 ) thereof, which correspond to
Netherlands, populations of nine of the bird species                           Articles 3 and 9 ( a ) ( 1 ) and ( 2 ) respectively of Directive
mentioned in Annex I have fallen by over 50% .                                 75/362/EEC ( 3 ) as amended by Article 1 of Directive
                                                                               90/568/EEC, the Kingdom of Spain has failed to fulfil its
Under the last subparagraph of Article 4(1 ), Member States                    obligations under Articles 5 and 189 of the Treaty
must classify the most suitable territories in number and size                 establishing the European Community .
as special protection areas . With a view to a coherent general
system of special protection areas, the Commission had                   2 . order the defendant to pay the costs .
scientific surveys carried out by the Secretariat de la flore et
de la faune of the Musee national d'histoire naturelle in                Pleas in law and main arguments:
Paris, which drew up an inventory of habitats which should
be classified, on ornithological criteria , as special protection        The mandatory nature of the third paragraph of Article 189
areas; that list was updated in 1989 and 1994 by the                     and the first paragraph of Article 5 of the EC Treaty requires
International Council for Bird Preservation ('Inventory of               Member States to adopt the measures necessary to comply
Important Bird Areas in the European Community' —                        with the directives which are addressed to them within the
IBA89 and IBA94 ). As regards the legal relevance of IBA89               period prescribed therein. That period expired on 1 July
and IBA94, the Commission considers that the objectives of               1991 without the Kingdom of Spain having brought into
Article 4(1 ) would be best served if the Member States were             force the necessary provisions.
in fact to classify all the areas mentioned in the inventory as
special protection areas . Since, however, the Member States             (') OJ No L 353 , 17. 12 . 1990 , p . 73 .
enjoy a certain discretionary power in this field, it does not           ( 2 ) OJ No L 165 , 7. 7 . 1993 , p . 1 .
seem to the Commission to be possible to impose that                     ( 3 ) OJ No L 167, 30 . 6 . 1975 , p . 1 .
maximum result by law. On the other hand, there may be a
breach of the obligation of classification if a Member State
manifestly disregards the number and size of the IBA89 and
IBA94 areas. This is particularly so if a Member State
classifies as special protection areas under half, in terms
both of number and of total size, of the areas listed in IBA89           Reference for preliminary ruling from the Bundes­
and IBA94 . Special protection areas must, moreover, be                  verwaltungsgericht by order of that court of 3 1 August 1995
sufficiently varied and representative to offer protection for           in the case of Badische Erfrischungs-Getranke GmbH 8t Co.
all the bird species listed in Annex I. The number and size of                           KG v. Land Baden-Wiirttemberg
the special protection areas classified by the Netherlands are                                      ( Case C- 17/96 )
not sufficient to meet those requirements .
                                                                                                      ( 96/C 77/ 14
                                                                         Reference has been made to the Court of Justice of
                                                                         the European Communities by order of the
                                                                         Bundesverwaltungsgericht ( Federal Administrative Court)
                                                                         — Third Senate — of 3 1 August 1 995 , received at the Court
Action brought on 11 January 1996 by the Commission of                   Registry on 19 January 1996 , for a preliminary ruling in the
the European Communities against the Kingdom of                          case of Badische Erfrischungs-Getranke GmbH & Co . KG
                                 Spain                                   v. Land Baden-Wurttemberg on the following questions :
                          ( Case C-5/96
                            ( 96/C 77/ 13 )                              1 . Is Article 1 ( 1 ) of Council Directive 80/777/EEC of
                                                                                15 July 1980 { l ) in conjunction with Annex I thereto
                                                                               ( Section I. Definition ) to be interpreted as meaning that
                (Language of the case: Spanish)                                water — apart from ' old water' covered by the second
                                                                               subparagraph of paragraph 2 of Section I. Definition of
An action against the Kingdom of Spain was brought before                      Annex I — is to be recognized as being natural mineral
the Court of Justice of the European Communities on                            water only if it has properties favourable to health and,
11 January 1996 by the Commission of the European                              if so, are those provisions to be interpreted as meaning
Communities, represented by B. J. Drijber and J. R. Vidal                      that those properties must be proved ?
Puig, of its Legal Service, acting as Agents, with an address
for service in Luxembourg at the office of Carlos Gomez de               2 . May the properties favourable to health which may be
la Cruz, of its Legal Service .                                                necessary also ensue from the absence or low content of
 ---pagebreak--- No C 77/8                 EN                  Official Journal of the European Communities                                           16 . 3 . 96
       the constituents referred to in paragraph 1 ( a ) of              Travail ( Labour Court ), Nivelles, of 16 January 1996 ,
       Section I of Annex I ( for example, in the case of water          which was received at the Court Registry on 22 January
       with a low sodium content)?                                       1996, for a preliminary ruling in the case of Vito Casano
                                                                         against ( 1 ) Institut National d'Assurance Maladie Invalidite
3 . How are the expressions 'properties favourable to                    and ( 2 ) Union Nationale des Mutualites Libres on the
       health' in paragraph 2 of Section I of Annex I and                following questions:
       'certain effects' in paragraph 1 ( a ) of Section I ( see also
       point 1.4.1 of Section II of Annex I ) to be differentiated
       from one another ?                                                1 . Where an authority in a Member State does not comply
                                                                             with Article 51 of Council Regulation ( EEC )
(') OJ No L 229, 1980, p. 1 .                                                No 1408/71 on the application of social security
                                                                             schemes to employed persons, to self-employed persons
                                                                             and to members of their families moving within the
                                                                             Community ( ] ), is the adjustment to the entitlement of
                                                                             the invalid worker affected to take effect from the date
Action brought on 19 January 1996 by the Commission of                       on which the invalidity benefit first became payable or
the European Communities against the Kingdom of                              from the date falling two years prior to the worker's
                                Belgium                                      application for rectification, as laid down by the
                                                                             national legislation of the Member State concerned, in
                           ( Case C- 18/96 )
                                                                             this case, Article 106 of the Law of 9 August 1963
                             ( 96/C 77/ 15 )                                 setting up and organizing a scheme for compulsory
                                                                             insurance against sickness and invalidity ?
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities on
19 January 1996 by the Commission of the European                        2 . Is it for the national legislation of each Member State to
Communities, representend by Hendrik van Lier and                            determine the limitation period applicable to claims by
Jean-Francis Pasquier, acting as Agents, with an address for                 migrant workers for invalidity pensions ?
service in Luxembourg at the office of Carlos Gomez de la
Cruz, of its Legal Service, Wagner Centre, Kirchberg.                    (') OJ, English Special Edition 1971(11 ), p. 416 .
The Commission of the European Communities claims that
the Court should :
— declare that, by failing to adopt within the prescribed
      period the laws, regulations or administrative provisions
      necessary to comply with Council Directive
      91/338/EEC ( 1 ) of 18 June 1991 relating to restrictions          Reference for a preliminary ruling by the Social Security
      on the marketing and use of certain dangerous
                                                                         Commissioner, by decision of 17 January 1996, in the case
      substances and preparations, the Kingdom of Belgium                 of Kelvin Albert Snares against the Adjudication Officer
      has failed to fulfil its obligations under the Treaty,
                                                                                                  ( Case C-20/96 )
— order the Kingdom of Belgium to pay the costs.                                                    ( 96/C 77/ 17
Pleas in law and main arguments:
                                                                         Reference has been made to the Court of Justice of the
The pleas in law and main arguments are analogous to those               European Communities by a decision of the Social Security
in Case C-5/96 (2); the time limit for transposition expired             Commissioner of 17 January 1996 , which was received at
on 31 December 1992 .                                                    the Court Registry on 22 January 1996 , for a preliminary
                                                                         ruling in the case of Kelvin Albert Snares against the
O OJ No L 186 , 12 . 7. 1991 , p . 59 .                                  Adjudication Officer, on the following questions:
( 2 ) See Case C-5/96 above .
                                                                         1 . Is the effect of the terms of Articles 4 ( 2 ) ( a ) and 10 ( a ) of
                                                                             Council Regulation ( EEC ) No 1408/71 of 14 June 1971
                                                                             on the application of social security schemes to
Reference for a preliminary ruling by the Tribunal du                        employed persons and their families moving within the
Travail, Nivelles, by judgment of that court of 16 January                   Community (*), as inserted by Regulation ( EEC ) No
1996 in the case of Vito Casano v. ( 1 ) Institut National                   1247/92 ( 2 ) with effect from 1 June 1992 , to remove
d'Assurance Maladie Invalidite and ( 2 ) Union Nationale des                 from the scope of Article 4 ( 1 ) of Regulation ( EEC ) No
                          Mutualites Libres                                  1408/71 a benefit which prior to 1 June 1992 would
                                                                             have been accepted, in the case of a person who by
                           ( Case C- 19/96 )                                 reason of previous occupational activity was or had
                               96/C 77/16                                    been covered by the social security legislation of the
                                                                             relevant Member State, as falling within the scope of
Reference has been made to the Court of Justice of the                       Article 4(1 ), with the consequence that a person who
European Communities by judgment of the Tribunal du                          after 1 June 1992 becomes entitled to such a benefit