CELEX: C1998/166/14
Language: en
Date: 1998-05-30 00:00:00
Title: Action brought on 3 April 1998 by the Commission of the European Communities against the French Republic (Case C-96/98)

30.5.98               EN                 Official Journal of the European Communities                                      C 166/9
of the European Communities in Case T-113/96 between                Action brought on 3 April 1998 by the Commission of the
Edouard Dubois et Fils SA, on the one hand, and Council                 European Communities against the French Republic
of the European Union and Commission of the European
                                                                                            (Case C-96/98)
Communities, on the other, was brought before the Court
of Justice of the European Communities on 3 April 1998                                       (98/C 166/14)
by Edouard Dubois et Fils SA, represented by Pierre
Ricard, avocat before the French Conseil d'EÂtat and Cour
de Cassation, and Alain Crosson de Cormier, of the Paris
Bar, with an address for service in Luxembourg at the               An action against the French Republic was brought before
Chambers of Marc Feiler, 67 Rue Ermesinde.                          the Court of Justice of the European Communities on
                                                                    3 April 1998 by the Commission of the European
                                                                    Communities, represented by Paolo Stancanelli, of its
The appellant claims that the Court should:                         Legal Service, and Olivier Couvert-Castera, national civil
                                                                    servant on secondment to that service, acting as Agents,
                                                                    with an address for service in Luxembourg at the office of
Ð set aside the judgment of the Court of First Instance,            Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
    with all the legal consequences entailed thereby;
Ð declare the defendants liable under the second                    The Commission of the European Communities claims
    paragraph of Article 215 of the Treaty for the damage           that the Court should:
    caused to it by the repercussions on its activities as an
    authorised customs agent;
                                                                    Ð declare that, by failing to adopt the special measures
                                                                        necessary for the conservation of bird habitats in the
Ð order the defendants jointly and severally to pay the                 Marais Poitevin and the appropriate steps to avoid
    sum of FF 112 339 702 by way of compensation for                    deterioration of those habitats, the French Republic
    that damage;                                                        has failed to fulfil its obligations under Article 4 of
                                                                        Directive 79/409/EEC (1);
Ð order the defendants to pay the costs.
                                                                    Ð order the French Republic to pay the costs.
Pleas in law and main arguments:
                                                                    Pleas in law and main arguments:
On the question of no-fault liability, the Court of First
Instance erred in holding that the cause of the damage was
the Single European Act and the establishment of an area
without internal frontiers to which it led. New obligations         Article 4(1) and (2) of Council Directive 79/409/EEC of
to act were imposed at the time on the Community                    2 April 1979 on the conservation of wild birds lays down
institutions, particularly in respect of the introduction of        the obligation to classify the most suitable territories as
compensatory support measures to facilitate the                     Special Protection Areas (SPAs) for the conservation of the
adaptation of the profession of customs agent.                      habitats of the species to which the Directive applies;
                                                                    Article 4(4) lays down the obligation to take appropriate
                                                                    steps to avoid deterioration of the habitats in the
On the question of liability for fault, the Court of First          protection areas. According to the case-law of the
Instance erred in holding that there was no legal                   Court (2), the latter obligation applies not only to
obligation to act incumbent on the institutions and that,           territories actually classified as SPAs, but also to territories
therefore, the failure to take appropriate measures could           which should have been so classified.
not give rise to liability and on the part of the
Community. The institutions chose to act by adopting
Council Regulation (EEC) No 3904/92 of 17 December                  The territory of the Marais Poitevin classified as an SPA is
1992 to adapt the profession of customs agent to the                insufficient. An area of 29 790 hectares is currently
internal market (1). That action on the part of the                 classified as such. That classification took place late, in
institutions was, however, very piecemeal and inadequate.           stages and after 1991. According to the most relevant
The Court of First Instance also erred in holding that              scientific data available, however, namely the inventory of
there was, in any event, no breach of a higher rule of the          Zones Importantes pour la Conservation des Oiseaux
law for the protection of individuals. There was a breach           (important areas for the conservation of birds) (ZIOC),
of the principle of vested rights as the profession of              published in 1994 by the French Ministry of the
customs agent had been recognised by Community                      Environment, 77 980 hectares exhibit the objective
legislation.                                                        characteristics justifying classification as an SPA. The
                                                                    inadequate nature of the appropriate steps intended to
(1) OJ L 394 of 31.12.1992, p. 1.                                   avoid deterioration of the habitats is due to the absence of
                                                                    suitable protective measures and to interference with and
                                                                    disturbances of natural habitats, in particular, the
                                                                    disappearance of natural water meadows as they are
 ---pagebreak--- C 166/10              EN                 Official Journal of the European Communities                                      30.5.98
cultivated and disturbances caused by motorway and road             Reference for a preliminary ruling by the Divisional
schemes.                                                            Court, Queen's Bench Division, by order of that court of
                                                                    31 July 1997, in the case of the Commissioners of
(1) OJ L 103 of 25.4.1979, p. 1.                                           Customs and Excise against Midland Bank plc
(2) Case C-355/90 Commission v Spain [1993] ECR 4221.                                        (Case C-98/98)
                                                                                              (98/C 166/16)
                                                                    Reference has been made to the Court of Justice of the
                                                                    European Communities by an order of the Divisional
Reference for a preliminary ruling from Pargas Tingsrätt            Court, Queen's Bench Division, of 31 July 1997, which
of 25 March 1998 in the case of Peter Jägerskiöld v Torolf          was received at the Court Registry on 3 April 1998, for a
                          Gustafsson                                preliminary ruling in the case of the Commissioners of
                       (Case C-97/98)                               Customs and Excise against Midland Bank plc, on the
                                                                    following questions:
                        (98/C 166/15)
                                                                    On the proper interpretation of Council Directive 67/227/
Reference has been made to the Court of Justice of the              EEC (1) of 11 April 1967, in particular Article 2, and
European Communities by an order of the Pargas                      Council Directive 77/388/EEC (2) of 17 May 1977, in
Tingsrätt (District Court) of 25 March 1998, which was              particular Article 17(2), (3) and (5), and having regard to
received at the Court Registry on 6 April 1998, for a               the facts of the present case:
preliminary ruling in the case of Peter Jägerskiöld v Torolf
Gustafsson on the following questions:
                                                                    (1) Is it necessary to establish a direct and immediate link
Ð Are fishing rights or spinning licenses goods' in                    between a particular input obtainable by a taxable
     accordance with the judgment in Case 7/68                          person acting as such and a particular transaction or
     Commission v Italian Republic [1968] ECR 423?                      transactions made by that person in order to:
                                                                        (a) establish the existence of an entitlement to deduct
Ð Does the amendment in Finland of the Law on Fishing
                                                                             tax charged in respect of the input; and
     1045/1996 constitute an obstacle to the free
     movement of goods according to the criteria laid
     down in Case 8/74 Dassonville [1974] ECR 837?                      (b) determine the extent of that entitlement?
Ð Does a leisure angler's recreational interest constitute a
                                                                    (2) If the answer to (1)(a) or (b) is in the affirmative, what
     permissible ground under Article 36 of the European
                                                                        is the nature of the direct and immediate link and, in
     Community's basic treaty?
                                                                        particular, in the case of a taxable person making both
                                                                        transactions in respect of which VAT is deductible and
Ð Does the present case involve agricultural products                   transactions in respect of which it is not:
     within the meaning of Article 37(4) of the Treaty of
     Rome?                                                              (a) is the test for determining the amount of input tax
                                                                             that is deductible any different as between
Ð Does the aforementioned legal rule have direct legal                       Article 17(2), (3) and (5) (and, if so, in which
     effect in accordance with the judgment in Case 6/64                     respects is it different); and
     Costa v ENEL (1)?
                                                                        (b) is such a person entitled to deduct all the input tax
                                                                             charged in respect of an input on the ground that
Ð Has sufficient       account   been   taken    of  farmers'
                                                                             the input was utilised as a consequence of making
     interests?
                                                                             a transaction falling within Articles 17(2) or 17(3),
                                                                             in particular Article 17(3)(c)?
Ð Does such an amendment of the Law on Fishing 1045/
     1996 concerning spinning contravene or not
     contravene the rules governing the free movement of            (3) If the answer to 1(a) or (b) is in the negative:
     goods (or the free provision of services) laid down in
     the European Community's basic treaty?                             (a) what is the link that has to be established; and
(1) ECR 1964, p. 614.
                                                                        (b) in the case of a taxable person making both
                                                                             transactions in respect of which VAT is deductible
                                                                             and transactions in respect of which it is not: