CELEX: C1997/228/19
Language: en
Date: 1997-07-26 00:00:00
Title: Action brought on 4 June 1997 by the Commission of the European Communities against the Portuguese Republic (Case C-214/97)

26 . 7. 97              EN                  Official Journal of the European Communities                                  No C 228/9
legislation of that Member State, where the company does               — by not providing for limit values for emissions for the
not itself carry on any business but it is desired to set up                 discharge of certain substances by industrial plant not
the subsidiary in order to carry on the entire business in                   listed under heading A of Annex II to the Directive,
the country in which the subsidiary is established, and
where, instead of incorporating a company in the latter                — by not transposing Article 3 ( 5 ) of the Directive
Member State, that procedure must be regarded as having                      concerning the reference method of analysis to be used
been employed in order to avoid paying in company                            in determining the presence of the substances referred
capital of not less than Dkr 200 000 ( at present Dkr                        to in Article 2 ( a ),
125 000 )?
                                                                       — by not transposing point 5 of heading A of Annex I to
                                                                             the Directive on the monitoring procedure to be
                                                                              instituted to check whether the discharges of the
                                                                             substances referred to in Article 2 ( a ) comply with the
                                                                             emission standards,
Action brought on 4 June 1997 by the Commission of the
  European Communities against the Portuguese Republic                 — by not drawing up any specific programme to avoid or
                          ( Case C-213/97 )                                  eliminate pollution arising from the sources of
                            ( 97/C 228/18 )                                   significant discharges which are specifically mentioned
                                                                              in Annex II,
An action against the Portuguese Republic was brought                  the defendant did not bring national law into line with the
before the Court of Justice of the European Communities                Directive, so that its transposition must be considered to
on 4 June 1997 by the Commission of the European                       be erroneous and incomplete .
Communities, represented by Francisco de Sousa Fialho,
of its Legal Service, acting as Agent, with an address for             O OJNoL 181 , 4 . 7. 1986 , p. 16 .
service in Luxembourg at the office of Carlos Gomez de la              ( 2 ) OJ No L 158 , 25 . 6 . 1988 , p . 35 .
Cruz, Wagner Centre, Kirchberg.                                        ( 3 ) OJ No L 129, 18 . 5 . 1976 , p . 23 .
The applicant claims that the Court should :
— declare that, by failing to adopt all the laws,
      regulations or administrative provisions necessary to            Action brought on 4 June 1997 by the Commission of the
      comply fully and properly with Council Directive 86/                 European Communities against the Portuguese Republic
      280/EEC (') of 12 June 1986, as amended by Council                                           ( Case C-214/97)
      Directive 88/347/EEC (2 ) of 16 June 1988 , on limit
      values and quality objectives for discharges of certain                                        ( 97/C 228/19 )
      dangerous substances included in List I of the Annex
      to Directive 76/464/EEC (3 ), the Portuguese Republic            An action against the Portuguese Republic was brought
      has failed to fulfil its obligations under the third             before the Court of Justice of the European Communities
      paragraph of Article 189 of the EC Treaty and                    on 4 June 1997 by the Commission of the European
      Articles 7 and 2 of Directives 86/280/EEC and 88/347/            Communities, represented by Francisco de Sousa Fialho,
      EEC respectively,                                                of its Legal Service, acting as Agent, with an address for
                                                                       service in Luxembourg at the office of Carlos Gomez de la
— declare, in the alternative, that, by failing forthwith to           Cruz, Wagner Centre, Kirchberg.
      inform the       Commission      of such measures,      the
      Portuguese Republic failed to fulfil its obligations             The applicant claims that the Court should:
      under those provisions,
                                                                       — declare that, by failing to adopt and bring into force
— order the Portuguese Republic to pay the costs.                             within the prescribed period the laws, regulations or
                                                                              administrative provisions necessary to comply with
                                                                              Council Directive 75/440/EEC of 16 June 1975
 Pleas in law and main arguments adduced in support:
                                                                              concerning the quality required of surface water
                                                                              intended for the abstraction of drinking water in the
 The Commission finds that the Portuguese Republic has                        Member States ( ! ), inasmuch as it did not draw up a
 failed to fulfil its obligations inasmuch as :                               systematic plan of action including a timetable for the
                                                                              improvement of surface water, the Portuguese
 — by providing, by virtue of Article 44 ( 3 ) of Decree                      Republic has failed to fulfil its obligations under the
      Law No 74/90, that the competent authorities for the                    third paragraph of Article 189 of the EC Treaty and
      granting of authorizations may fix emission standards                   the provisions of Directive 75/440/EEC,
      which are less stringent than those set out under
      heading A of the Annexes to the Directive and by not             — declare, in the alternative, that, by failing forthwith to
      providing for any mandatory review of such                               inform the Commission of such measures, the
      authorizations ( infringement of Article 3 ( 3 ) of the                  Portuguese Republic failed to fulfil its obligations
      Directive ),                                                             under those provisions,
 ---pagebreak--- No C 228/ 10            EN                   Official Journal of the European Communities                                         26 . 7. 97
— order the Portuguese Republic to pay the costs.                       1 . Is Article 13 ( A) ( 1 ) of the Sixth Directive (') to be
                                                                             interpreted as meaning that two natural persons ( i.e.
Pleas in law and main arguments adduced in support:                          individuals) who carry on business in common as
                                                                             partners        cannot         claim     exemption        under
Under the third paragraph of Article 189 of the EC Treaty,                   subparagraph ( b ) in the circumstances summarized in
a directive is to be binding, as to the result to be achieved,               the schedule to these questions and on the assumptions
upon each Member State to which it is addressed. Under                       that :
Article 395 and Annex XXXVI of the Act concerning the
conditions of accession of the Portuguese Republic to the                    ( i ) the business consists of medical care and closely
                                                                                    related activities:
European Communities, Directive 75/440/EEC is
applicable in Portugal as from 1 January 1989; the period                           and
for the entry into force of the necessary provisions of
domestic law thus expired on that date . Despite the                         ( ii ) they are 'duly recognized' and their activities are
prescribed periods having expired, the Portuguese                                   of a similar nature to those provided by ' hospitals'
Republic has nevertheless failed to adopt a systematic plan                         and/or     'centres     for   medical  treatment        or
of action including a timetable for the improvement of                              diagnosis '?
surface water, especially that falling within category A3 .
(') OJ No L 194, 25 . 7 . 1975 , p . 26 .
                                                                             In particular, are            the  partners  excluded      from
                                                                             exemption because :
                                                                             ( a ) they do not constitute a ' body' governed by public
                                                                                    law;
                                                                              ( b ) their activities are not undertaken under social
Reference for a preliminary ruling by the Tribunale Civile                          conditions comparable to those applicable to
di Bologna, Sezione Lavoro, by order of that court of                               bodies governed by public law ?
16 April 1997 in the case of Barbara Bellone against
                          Yokohama SpA
                                                                        2 . Is Article 13 (A) ( 1 ) of the Sixth Directive to be
                         ( Case C-215 /97 )
                                                                             interpreted as meaning that two natural persons
                            ( 97/C 228/20 )                                   ( i.e. individuals ) who carry on business in common
                                                                              as partners cannot claim exemption under
Reference has been made to the Court of Justice of the                        subparagraph (g) in the circumstances summarized in
European Communities by order of the Tribunale Civile di                      the schedule to these questions and on the assumption
Bologna, Sezione Lavoro ( District Civil Court of Bologna,                    that the services they supply are 'closely linked to
Employment Division ) of 16 April 1997, received at the                       welfare and social security work, including those
 Court Registry on 9 June 1997, for a preliminary ruling in                   supplied by old people's homes'?
the case of Barbara Bellone v. Yokohame SpA on the
following question:                                                     (') Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                            harmonization of the laws of the Member States relating to
                                                                            turnover taxes — Common system of value added tax :
Is Directive 86/653/EEC (') compatible with Articles 2 and                  uniform basis of assessment ( OJ No L 145 , 13 . 6 . 1977 , p. 1 ).
 9 of Italian Law No 204 of 3 May 1985 , which make the
 validity of agency contracts conditional upon commercial
 agents being entered in the appropriate register ?
 (') OJ No L 382 , 31 . 12 . 198 , p . 17 .
                                                                        Appeal brought on 9 June 1997 by the Council of the
                                                                        European Union against the judgment delivered on
                                                                         16 April 1997 by the First Chamber of the Court of First
                                                                        Instance of the European Communities in Case T-80/96
                                                                         between Ana Maria Fernandes Leite Mateus and Council
 Reference for a preliminary ruling by the VAT and Duties
 Tribunal, Belfast, by direction of that court of 4 June                                         of the European Union
 1997, in the case of Jennifer Gregg and Mervyn Gregg                                              ( Case C-218/97 P )
      against the Commissioners of Customs and Excise                                                 ( 97/C 228/22 )
                          ( Case C-216/97)
                             ( 97/C 228/21 )
                                                                         An appeal against the judgment delivered on 16 April
                                                                         1997 by the First Chamber of the Court of First Instance
 Reference has been made to the Court of Justice of the                  of the European Communities in Case T-80/96 between
 European Communities by direction of the VAT and                        Ana Maria Fernandes Leite Mateus and Council of the
 Duties Tribunal, Belfast, of 4 June 1997, which was                     European Union was brought before the Court of Justice
 received at the Court Registry on 9 June 1997, for a                    of the European Communities on 9 June 1997 by the
 preliminary ruling in the case of Jennifer Gregg and                    Council of the European Union, represented by Amadeu
 Mervyn Gregg against the Commissioners of Customs and                   Lopes Sabino, Diego Canga Fano and Therese Blanchet, of
 Excise , on the following questions :                                   its Legal Servie, with an address for service in