CELEX: C2000/233/38
Language: en
Date: 2000-08-12 00:00:00
Title: Case C-233/00: Action brought on 13 June 2000 against the French Republic by the Commission of the European Communities

C 233/20               EN                    Official Journal of the European Communities                                     12.8.2000
The applicant claims that the Court should:                             through expiry of the period within which a decision must be
                                                                        taken should be regarded as constituting a very serious
                                                                        infringement of the above directives.
—     Declare that, by failing to adopt the laws, regulations and
      administrative provisions necessary to transpose in full          ( 1) OJ 1975 L 194, p. 39.
      Article 9 of Council Directive 75/442/EEC (1) of 15 July          ( 2) OJ 1976 L 129, p. 23.
      1975 on waste, as amended by Council Directive                    ( 3) OJ 1980 L 20, p. 43.
      91/156/EEC of 18 March 1991, Articles 3, 4, 5 and 7 of            ( 4) OJ 1984 L 188, p. 20.
      Council Directive 76/464/EEC (2) of 4 May 1976 on                 ( 5) OJ 1985 L 175, p. 40.
      pollution caused by certain dangerous substances dischar-
      ged into the aquatic environment of the Community,
      Articles 3, 4, 5, 7 and 10 of Council Directive
      80/68/EEC (3) of 17 December 1979 on the protection
      of groundwater against pollution caused by certain
      dangerous substances, Articles 3, 4, 9 and 10 of Council
      Directive 84/360/EEC (4) of 28 June 1984 on the comba-            Action brought on 13 June 2000 against the French
      ting of air pollution from industrial plants, and Articles 2      Republic by the Commission of the European Communi-
      and 8 of Council Directive 85/337/EEC (5) of 27 June                                              ties
      1985 on the assessment of the effects of certain public
      and private projects on the environment, the Kingdom of
      Belgium has failed to fulfil its obligations under Artic-                                   (Case C-233/00)
      le 249 EC and the above directives;
                                                                                                  (2000/C 233/38)
—     order the Kingdom of Belgium to pay the costs of the              An action against the French Republic was brought before the
      proceedings.                                                      Court of Justice of the European Communities on 13 June
                                                                        2000 by the Commission of the European Communities,
                                                                        represented by Götz zur Hausen and Jean-François Pasquier,
                                                                        Legal Advisers, acting as Agents, with an address for service in
                                                                        Luxembourg at the office of Carlos Gómez de la Cruz, a
                                                                        Member of the Commission’s Legal Service, Wagner Centre,
Pleas in law and main arguments                                         Kirchberg.
                                                                        The Commission of the European Communities claims that
                                                                        the Court should:
The Commission takes the view that the so-called ‘implied
authorisation’ provided for in the local legislation of Flanders        —     declare that by not correctly transposing Article 2(a) and
and Wallonia runs counter to the provisions of the directives                 Article 3(2), (3) and (4) of Council Directive 90/313/EEC
listed in the forms of order sought. The mechanism of this                    of 7 June 1990 on the freedom of access to information
‘implied authorisation’ operates as follows: if the competent                 on the environment (1) the French Republic has failed to
authority at first instance does not take a decision on an                    fulfil its obligations under that directive and under the
application for authorisation, the requested authorisation will               third paragraph of Article 249 of the Treaty;
then be deemed to have been refused (the principle of implied
refusal). However, precisely the opposite applies at higher             —     order the French Republic to pay the costs.
instance. If the appellate authority fails, within the specified
period, to take a decision, authorisation will be deemed to
have been granted (the principle of implied authorisation).             Pleas in law and main arguments
This rule applies even in the case of express or implied refusal
of authorisation at first instance.                                     —     Incomplete transposition of the combined provisions of
                                                                              Article 2(a) and Article 3(1) of Directive 90/313/EEC
                                                                              (scope of the duty to communicate): The concept of
                                                                              ‘administrative document’ used by (French) Law No 78-
‘Implied authorisation’ resulting from the mere fact that the                 753 is narrower than that of ‘information relating to the
time-limit for taking a decision has passed cannot, however,                  environment’ contained in the directive, with the result
be treated as constituting express administrative action. The                 that certain documents held by the administration and
directives cited above require, not a merely formal licensing                 containing environmental information likely to be of
obligation, but a substantive decision. In addition, the authori-             interest to citizens might not be communicable on the
sation applied for may be granted only after a prior investiga-               basis of Law No 78-753.
tion has been conducted; the mechanism of ‘implied authorisa-
tion’ provides no guarantee that authorisation will be granted          —     Incorrect transposition of the first paragraph of Artic-
only once such an investigation has been completed. Finally,                  le 3(2) (exceptions to the principle that environmental
the possibility that, if the competent authority at first instance            information is to be communicated): The final indent of
concludes that the requested authorisation has to be refused,                 Article 6 of Law No 78-753 allows a request for access
that decision may be overturned at appellate level merely                     to information to be refused where consultation or the
 ---pagebreak--- 12.8.2000              EN                     Official Journal of the European Communities                                        C 233/21
      communication of a document would ‘be generally                    Justice (England & Wales), Queen’s Bench Division (Crown
      prejudicial to secrets protected by law’. That concept is          Office) of 1 June 2000, which was received at the Court
      not amongst the exhaustive list of exceptions set out in           Registry on 13 June 2000, for a preliminary ruling in the case
      Article 3(2) of Directive 90/313/EEC. It is not the same           of the Commissioners of Customs and Excise against CSC
      thing as, and is no less extensive in the area it covers           Financial Services Ltd (formerly Continuum (Europe) Ltd), on
      than, the concept in the directive of ‘confidentiality of          the following questions:
      data’. Even though national authorities are required to
      interpret provisions of domestic law in such a way as to           How is the exemption provided by article 13B(d)(5) (1) in
      ensure compliance with Community law, the wording of               respect of ‘transactions in securities’ to be interpreted? In
      Law No 78-753 is not sufficient objectively to exclude             particular,
      the possibility of a refusal that is not justified under the
      directive, and, contrary to the obligations which follow           (1) does the term ‘transaction in securities’ apply only to a
      from Community law, the legal appearance creates a legal                 transaction in which the parties’ legal rights or obligations
      uncertainty which cannot be allowed.                                     in respect of the security are altered?
—     Failure to transpose the final paragraph of Article 3(2)           (2) does the term ‘transactions, including negotiation, in
      (partial communication of information): A doctrine set                   securities’ apply to a service of providing information to
      out by the (French) ‘Commission on Access to Admi-                       potential investors and receiving and processing applica-
      nistrative Documents’ is no substitute for the correct                   tions from investors for the issue of a security (but not
      transposition of a directive conferring rights on indivi-                including preparing and dispatching the document of
      duals.                                                                   title to the security), where that service is provided to a
                                                                               person who has legal rights or obligations under the
                                                                               security by a person who does not have any legal right or
—     Failure to transpose Article 3(3) (possibility of refusing a
                                                                               obligation under the security?
      manifestly unreasonable request, or one requiring the
      communication of unfinished or internal documents):
      Whilst it is true that Article 3(3) of the directive states        (1) Of the Sixth Council Directive 77/388/EEC of 17 May 1977 on
      merely a possibility that is open to Member States and                 the harmonization of the laws of the Member States relating to
      not an obligation, it appears that that possibility of                 turnover taxes — Common system of value added tax: uniform
      rejecting requests is in fact used by the French administra-           basis of assessment (OJ L 145, 13.06.77, p. 1).
      tion when faced with certain requests for information,
      and that individuals are not in a position to discover with
      the required clarity what the limits of their right of access
      to information are, since the assessment of the exceptions
      is carried out only on a case by case basis by the
      administrative courts.
                                                                         Action brought on 13 June 2000 by the Commission of
                                                                         the European Communities against the Grand Duchy of
—     Incorrect transposition of Article 3(4) (Possibility of no
                                                                                                     Luxembourg
      reasons being given for implied rejection decisions).
                                                                                                   (Case C-236/00)
( 1) OJ L 158, 23.6.1990, p. 56.
                                                                                                   (2000/C 233/40)
                                                                         An action against the Grand Duchy of Luxembourg was
                                                                         brought before the Court of Justice on 13 June 2000 by the
                                                                         Commission of the European Communities, represented by
                                                                         Gérard Berscheid, of its Legal Service, acting as Agent, with an
                                                                         address for service in Luxembourg at the office of Carlos
                                                                         Gómez de la Cruz, of its Legal Service, Wagner Centre,
Reference for a preliminary ruling by the High Court of                  Kirchberg.
Justice (England & Wales), Queen’s Bench Division
(Crown Office), by order of that court of 1 June 2000, in                The Commission of the European Communities claims that
the case of the Commissioners of Customs and Excise                      the Court should:
against CSC Financial Services Ltd (formerly Continuum
                           (Europe) Ltd)                                 —     declare that, by failing to bring into force within the
                                                                               prescribed time-limits the laws, regulations and admi-
                                                                               nistrative measures necessary in order to comply with:
                         (Case C-235/00)
                                                                               —      Commission Directive 98/51/EC of 9 July 1998
                         (2000/C 233/39)                                              laying down certain measures for implementing
                                                                                      Council Directive 95/69/EC laying down the condi-
                                                                                      tions and arrangements for approving and registe-
Reference has been made to the Court of Justice of the                                ring certain establishments and intermediaries ope-
European Communities by an order of the High Court of                                 rating in the animal feed sector (1), and