CELEX: C2001/212/22
Language: en
Date: 2001-07-28 00:00:00
Title: Case C-205/01: Action brought on 18 May 2001 by Commission of the European Communities against Kingdom of the Netherlands

28.7.2001               EN                    Official Journal of the European Communities                                        C 212/13
Action brought on 16 May 2001 by the Commission of                       —     By April 2000, 41 of the 96 sites listed in the IACB as
 the European Communities against the French Republic                          wetlands of international importance had not yet been
                                                                               classified by France as special protection areas and in the
                                                                               case of at least 4 of the 45 sites which had been so
                          (Case C-202/01)                                      classified, the classification applied only to the minimum
                                                                               surface area possible — notwithstanding the fact that
                                                                               Article 4(2) of Directive 79/409/EEC requires that such
                          (2001/C 212/21)                                      sites be classified as special protection areas in order to
                                                                               protect wetlands and the species of bird which live there,
                                                                               particularly migratory species. There has not yet been any
An action against the French Republic was brought before the                   significant improvement in this situation.
Court of Justice of the European Communities on 16 May
2001 by the Commission of the European Communities,
represented by G. Valero Jordana and J. Adda, acting as Agents,          (Infringement procedure 97/4527 concerning the application
with an address for service in Luxembourg.                               of the Directive to the Plaine des Maures)
                                                                         —     In classifying as special protection areas no more than
The applicant claims that the Court should:                                    879 hectares out of the 7 500 hectares covered by the
                                                                               IACB (that is to say, 11.72 %), France has also failed to
—     Declare that the French Republic has failed to fulfil its                fulfil its obligation under Article 4(1) and (2) of Directive
      obligations under Council Directive 79/409/EEC of                        79/409/EEC to classify as special protection areas the
      2 April 1979 on the conservation of wild birds (1) and                   most suitable territories in number and size.
      under the Treaty establishing the European Community,
      in that it has not, in satisfactory measure, classified as
      special protection areas the territories most suitable for         (1) OJ L 103 of 25.4.1979, p. 1.
      the conservation of the species of wild bird listed in             (2) Case C-3/96 Commission v Netherlands [1998] ECR I-3031.
      Annex I to that Directive or of migratory species of bird,
      and, in particular, in that it has not classified as a special
      protection area a sufficiently large area of land on the
      Plaine des Maures;
—     Order the French Republic to pay the costs.
Pleas in law and main arguments                                          Action brought on 18 May 2001 by Commission of the
                                                                         European Communities against Kingdom of the Nether-
                                                                                                          lands
(Infringement procedure 97/2004 concerning the application
of the Directive in general)                                                                       (Case C-205/01)
—     When the deadline provided for in Article 18 of Directive                                    (2001/C 212/22)
      79/409/EEC expired on 16 April 1989, the French
      Republic had not yet adopted the measures necessary to
      comply with its obligations under Article 4 thereof. The           An action against the Kingdom of the Netherlands was brought
      special protection areas designated so far are insufficient        before the Court of Justice of the European Communities on
      in terms of number, size and quality to meet the                   18 May 2001 by Commission of the European Communities,
      protection needs of the species of bird concerned. Only            represented by R. Wainright and J. Stuyck, acting as Agents.
      40,7 % of the 285 sites named in the official list of
      ‘Important areas for the conservation of birds’ (the IACB)         The applicant claims that the Court should:
      — published in 1994 by the French Ministry of the
      Environment and the League for the Protection of Birds             —     Declare that by failing to adopt all the laws, regulations
      and based on the most reliable scientific data then                      and administrative provisions necessary in order to
      available — and only 18,2 % of the land covered by those                 implement in national law Articles 8(2), 11, 18(1) and
      sites has been classed, in whole or in part, as special                  22(1) of Council Directive 86/609/EEC(1) of 24 Novem-
      protection areas. The Court of Justice has recognised that               ber 1986 on the approximation of laws, regulations and
      those lists are relevant and may be relied upon in actions               administrative provisions of the Member States regarding
      against Member States for failure to fulfil obligations (2).             the protection of animals used for experimental and other
      According to the Commission, the French Government                       scientific purposes, or in any case by failing to inform the
      has not yet drawn up a list showing that the findings of                 Commission of those provisions, the Kingdom of the
      the IACB are unsound and the latter remains the best                     Netherlands has failed to take the measures necessary to
      scientific evidence available on the basis of which to                   comply with Article 25 of Directive 86/609/EEC that are
      make an overall assessment of the classifications effected               necessary to comply with the directive by 24 November
      by France in respect of its territory.                                   1989 at the latest;
 ---pagebreak--- C 212/14               EN                      Official Journal of the European Communities                                     28.7.2001
—     Order the Kingdom of the Netherlands to pay the costs.                   (b) the third party has no defence to infringement by
                                                                                     virtue of Article 6(1) of the Council Directive of the
                                                                                     21st December 1988 to approximate the laws of
Pleas in law and main arguments                                                      the Member States relating to trade marks
                                                                                     (89/104/EEC) (1);
The Commission submits that Netherlands has not correctly
implemented the following provisions of the directive into                     does the third party have a defence to infringement on
Netherlands law:                                                               the ground that the use complained of does not indicate
                                                                               trade origin (i.e. a connection in the course of trade
—     Article 8(2) (use of anaesthesia in the case of serious                  between the goods and the trade mark proprietor)?
      injury which may cause severe pain): A draft amendment
      to the ‘Dierproevenbesluit’ (animal experiments order) for
                                                                          2.   If so, is the fact that the use in question would be
      the implementation of Article 8(2)(b), last sentence,
                                                                               perceived as a badge of support, loyalty or affiliation to
      of the directive, was, according to the Netherlands
                                                                               the trade mark proprietor a sufficient connection?
      Government, recently sent for the opinion of the Raad
      van State.
—     Article 11 (release of animals): The Commission submits
      that Article 10(a), second paragraph of the Wet op de               (1) OJ L 40, 11.2.1989, p. 1.
      Dierproeven (law on animal experiments) has a general
      scope and does not concern specifically the release of
      animals.
—     Article 18(1) (identification marking of dogs, cats and
      primates): There is no provision in Netherlands law to
      the effect that before they are weaned they must be provided
      with an individual identification mark in the least painful
      manner possible.
—     Article 22(1) (mutual recognition of results of animal
      experiments): The Commission submits that this pro-                 Reference for a preliminary ruling from the Bundesfin-
      vision must be implemented in national law by means of              anzhof by order of that court of 21 February 2001 in the
      a statutory provision with binding force.                           case of Theodor Schilling and Angelika Fleck-Schilling v
                                                                                             Finanzamt Nürnberg-Süd
(1) OJ 1987, L 117, p. 31.
                                                                                                  (Case C-209/01)
                                                                                                  (2001/C 212/24)
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by an order of the Bundesfinanzhof
Reference for a preliminary ruling by the High Court of                   (Federal Finance Court) of 21 February 2001, which was
Justice (England & Wales), Chancery Division, by order                    received at the Court Registry on 21 May 2001, for a
of that court of 4 May 2001, in the case of Arsenal                       preliminary ruling in the case of Theodor Schilling and
           Football Club plc against Matthew Reed                         Angelika Fleck-Schilling v Finanzamt Nürnberg-Süd on the
                                                                          following questions:
                          (Case C-206/01)
                                                                          1.   Is it contrary to the first paragraph of Article 14 of the
                                                                               Protocol on the privileges and immunities of the Euro-
                         (2001/C 212/23)                                       pean Communities of 8 April 1965 (BGBl II 1965, 1482,
                                                                               1488) if German nationals who work in Luxembourg as
Reference has been made to the Court of Justice of the                         officials of the European Community and live there may
European Communities by an order of the High Court of                          not, in the context of assessment to German income tax,
Justice (England & Wales), Chancery Division, of 4 May 2001,                   deduct expenditure in respect of a household help
which was received at the Court Registry on 18 May 2001, for                   employed in Luxembourg under Paragraph 10(1)(8) of
a preliminary ruling in the case of Arsenal Football Club plc                  the Einkommensteuergesetz (Law on income tax) because
against Matthew Reed, on the following questions:                              the contributions to the statutory pension insurance
                                                                               scheme for the household help were not paid to the
1.    Where a trade mark is validly registered and
                                                                               German pension insurance scheme?
      (a)   a third party uses in the course of trade a sign
            identical with that trade mark in relation to goods           2.   If Question 1 is answered in the negative: Is Article 48(4)
            which are identical with those for whom the trade-                 of the EC Treaty to be interpreted as meaning that an EC
            mark is registered; and                                            official may not rely on Article 48 of the EC Treaty?