CELEX: C1998/166/04
Language: en
Date: 1998-05-30 00:00:00
Title: Action brought on 2 March 1998 by the Commission of the European Communities against the Kingdom of the Netherlands (Case C-63/98)

C 166/2               EN                  Official Journal of the European Communities                                      30.5.98
LeÂger, Advocate General; H. von Holstein, Deputy                    Fisheries and Food, ex parte Compassion in World
Registrar, for the Registrar, has given a judgment on                Farming Limited Ð on the interpretation of Articles 34
17 March 1998, in which it has ruled:                                and 36 of the EC Treaty and the validity of Council
                                                                     Directive 91/629/EEC of 19 November 1991 laying down
                                                                     minimum standards for the protection of calves (OJ L 340
1. The exception in respect of vehicles used by public               of 11.12.1991, p. 28) Ð the Court, composed of: G. C.
    authorities to provide public services which are not in          Rodríguez Iglesias, President, C. Gulmann, H.
    competition with professional road hauliers, provided            Ragnemalm, M. Wathelet (Presidents of Chambers), G. F.
    for in Article 13(1)(b) of Council Regulation (EEC)              Mancini (Rapporteur), J. C. Moitinho de Almeida, P. J. G.
    No 3820/85 of 20 December 1985 on the                            Kapteyn, J. L. Murray, D. A. O. Edward, J.-P. Puissochet,
    harmonisation of certain social legislation relating to          G. Hirsch, P. Jann and L. Sevón, Judges; P. LeÂger,
    road transport, does not apply to vehicles belonging to          Advocate General; L. Hewlett, Administrator, for the
    an undertaking which is wholly owned by a public                 Registrar, has given a judgment on 19 March 1998, in
    authority and which operates a public passenger                  which it has ruled:
    service under a contract granting it an exclusive right
    for a specified period following a call for competing
    tenders.                                                         1. Consideration of Council Directive 91/629/EEC of
                                                                         19 November 1991 laying down minimum standards
                                                                         for the protection of calves has disclosed no factor of
                                                                         such a kind as to affect its validity.
2. The requirement in Article 14(5) of Regulation (EEC)
    No 3820/85, that each driver assigned to a service
    referred to in Article 14(1) must carry an extract from          2. A Member State which has implemented the 1988
    the duty roster and a copy of the service timetable, is              Recommendation concerning Cattle, drawn up to
    not satisfied where the extract from the duty roster                 apply the principles of the European Convention on
    relates only to the day on which it is checked.                      the Protection of Animals kept for Farming Purposes,
                                                                         cannot rely on Article 36 of the EC Treaty and, in
(1) OJ C 26 of 25.1.1997.                                                particular, on the grounds of public morality, public
                                                                         policy or the protection of the health or life of animals
                                                                         laid down in that article, in order to justify restrictions
                                                                         on the export of live calves with a view to preventing
                                                                         those calves from being reared in the veal crate
                                                                         systems used in other Member States which have
                                                                         implemented Directive 91/629/EEC but which do not
                                                                         apply that recommendation.
              JUDGMENT OF THE COURT
                      of 19 March 1998                               (1) OJ C 46 of 17.2.1996.
in Case C-1/96 (reference for a preliminary ruling from
the High Court of Justice, Queen's Bench Division): The
Queen v Minister of Agriculture, Fisheries and Food, ex
      parte Compassion in World Farming Limited (1)
(Articles 34 and 36 of the EC Treaty Ð Directive 91/629/
EEC Ð European Convention on the Protection of                       Action brought on 2 March 1998 by the Commission of
Animals Kept for Farming Purposes Ð Recommendation                   the European Communities against the Kingdom of the
concerning Cattle Ð Export of calves from a Member                                             Netherlands
State maintaining the level of protection laid down by the
                                                                                            (Case C-63/98)
Convention and the Recommendation Ð Export to
Member States which comply with the Directive but do                                         (98/C 166/04)
not observe the standards laid down in the Convention or
the Recommendation and use intensive farming systems
prohibited in the exporting State Ð Quantitative                     An action against the Kingdom of the Netherlands was
restrictions on exports Ð Exhaustive harmonisation Ð                 brought before the Court of Justice of the European
                   Validity of the Directive)                        Communities on 2 March 1998 by the Commission of the
                                                                     European Communities, represented by Wouter Wils,
                        (98/C 166/03)
                                                                     acting as Agent, with an address for service in
                                                                     Luxembourg at the office of C. Gómez de la Cruz, of its
                                                                     Legal Service, Wagner Centre, Kirchberg.
               (Language of the case: English)
                                                                     The applicant claims that the Court should:
In Case C-1/96: reference to the Court under Article 177
of the EC Treaty from the High Court of Justice (England
and Wales), Queen's Bench Division, for a preliminary                Ð declare that, by failing to take appropriate steps, in
ruling in the proceedings pending before that court                      managing fishing for shellfish in the Waddenzee, to
between The Queen and the Minister of Agriculture,                       avoid deterioration of the habitats of certain types of
 ---pagebreak--- 30.5.98                EN                Official Journal of the European Communities                                        C 166/3
    birds or any disturbances affecting the birds, in breach             mentioned in Annex I of the directive and for
    of Directive 79/409/EEC (1), in particular Articles 2                migratory birds are inadequate to enable those birds to
    and 4 thereof, and Directive 92/43/EEC (2) the                       continue to exist and to reproduce. The Commission
    Kingdom of the Netherlands has failed to fulfil its                  consequently      considers     that    the    Netherlands
    obligations under the Treaty; and                                    authorities have failed to comply with Article 4(1) and
                                                                         (2).
Ð order the Kingdom of the Netherlands to pay the                   Ð In accordance with Article 6(2) of Directive 92/43/
    costs.                                                               EEC on habitats, the Netherlands must take
                                                                         appropriate steps to avoid, in the special areas of
                                                                         conservation, the deterioration of natural habitats and
Pleas in law and main arguments:
                                                                         the habitats of species as well as disturbance of the
                                                                         species for which the areas have been designated,
Ð a general obligation is imposed on the Member States                   insofar as such disturbance could be significant in
    by Article 2 of Directive 79/409/EEC on wild birds to                relation to the objectives of the directive. According to
    take the requisite measures to maintain the bird                     Article 7 of that directive, that obligation replaces the
    population at a level which corresponds to ecological,               obligations arising under the first sentence of
    scientific and cultural requirements, or to adapt the                Article 4(4) of Directive 79/409/EEC and thus applies
    population to that level. In so doing Member States                  to the Waddenzee. The policy implemented by the
    may take account of economic and recreational                        Netherlands Government results in a deterioration of
    requirements. The severe decline in certain types of                 the quality of the habitat of the species of birds
    bird which feed on cockles or mussels or have an                     concerned in the special conservation area of the
    effect on fishing of shellfish in some other way is an               Waddenzee; the disturbances for those species are
    indication that the Netherlands policy does not satisfy              significant in relation to the objectives of the directive.
    that general requirement, since the measures necessary               The Commission therefore considers that the
    to maintain the bird population at a satisfactory level              Netherlands authorities have failed to comply with
    are still lacking.                                                   Article 6(2) of the directive on habitats.
                                                                    (1) Directive 79/409/EEC of the Council of 2 April 1979 on the
    It appears from the recommendations from various                    conservation of wild birds, OJ L 103 of 2.4.1979, p. 1.
    parties that even bearing in mind the economic                  (2) Directive 92/43/EEC of the Council of 21 May 1992 on the
    importance of shellfish fishing, it is none the less                conservation of natural habitats and of wild fauna and flora,
    possible to restrict the environmental effects to a                 OJ L 206 of 21.5.1992, p. 7.
    greater extent than is attainable with the current
    policy of the Netherlands Government. The
    possibilities of taking account of the interests of the
    fishing industry in a manner which has less effect on
    the environment have clearly not been studied by the
    Netherlands authorities. The Commission concludes               References for a preliminary ruling by the Arbeitsgericht,
    therefore that the Netherlands Government has not               Wiesbaden, by orders of that court of 27 February 1998
    complied with Article 2 of the directive on wild birds.         in the cases of Urlaubs- und Lohnausgleichskasse der Bau-
                                                                    wirtschaft against Duarte dos Santos Sousa (C-68/98),
                                                                    Urlaubs- und Lohnausgleichskasse der Bauwirtschaft
    Article 4 of the directive on wild birds does not               against Santos & Kewitz ConstrucËoÄes Lda (C-69/98),
    contain any provision of the same kind as that in               Portugaia ConstrucËoÄes Lda against Urlaubs- und Lohnaus-
    Article 2 which makes it possible to take account,              gleichskasse der Bauwirtschaft (C-70/98) and Engil
    inter alia, of economic requirements. The Netherlands           Sociedade de ConstrucËaÄo Civil S.A. against Urlaubs- und
    Waddenzee, which is designated a special protection                   Lohnausgleichskasse der Bauwirtschaft (C-71/98)
    area for the purposes of the directive is a wet zone of                           (Cases C-68/98 to C-71/98)
    international importance for water birds, in respect of
    which the Netherlands therefore bears a particular                                        (98/C 166/05)
    responsibility. According to Article 4(1) the
    Netherlands is required to adopt special conservation           Reference has been made to the Court of Justice of the
    measures in respect of the species mentioned in                 European Communities by orders of the Arbeitsgericht
    Annex I in order to ensure the survival and                     (Labour Court), Wiesbaden, of 27 February 1998,
    reproduction of those species. Certain birds mentioned          received at the Court Registry on 13 March 1998, for a
    in Annex I can be found in the Netherlands part of the          preliminary ruling in the cases of Urlaubs- und Lohnaus-
    Waddenzee and nest there. Similar measures must be              gleichskasse der Bauwirtschaft (Holiday and Wage
    taken for regularly occuring migratory species not              Equalisation Fund of the Construction Industry) against
    listed in Annex I as regards their breeding, moulting           Duarte dos Santos Sousa (C-68/98), Urlaubs- und Lohn-
    and wintering areas and staging posts along their               ausgleichskasse der Bauwirtschaft against Santos &
    migration routes. A number of species of migratory              Kewitz ConstrucËoÄes Lda (C-69/98), Portugaia ConstrucËoÄes
    birds regularly call in at the Netherlands part of the          Lda against Urlaubs- und Lohnausgleichskasse der Bau-
    Waddenzee. The Commission concludes from the                    wirtschaft (C-70/98) and Engil Sociedade de ConstrucËaÄo
    information available to it that the protective measures        Civil S.A. against Urlaubs- und Lohnausgleichskasse der
    adopted by the Netherlands authorities for the birds            Bauwirtschaft (C-71/98) on the following questions: