CELEX: C2003/135/22
Language: en
Date: 2003-06-07 00:00:00
Title: Case C-149/03: Action brought on 1 April 2003 by the Commission of the European Communities against the Kingdom of Belgium

7.6.2003                 EN                       Official Journal of the European Union                                           C 135/15
Action brought on 28 March 2003 by the Commission of                      2003 by the Commission of the European Communities,
 the European Communities against the Italian Republic                    represented by T. van Rijn, acting as Agent.
                           (Case C-143/03)
                                                                          The applicant claims that the Court should:
                           (2003/C 135/21)
                                                                          —     declare that, by
An action against the Italian Republic was brought before the                   1.    failing to adopt adequate provisions governing the
Court of Justice of the European Communities on 28 March                              utilisation of the quotas allocated to Belgium for the
2003 by the Commission of the European Communities,                                   fishing years 1991 to 1996,
represented by Luca Visaggio and Roberto Amorosi, acting as
Agents.
                                                                                2.    failing to ensure observance of the Community
                                                                                      legislation on the conservation of fishery resources
The applicant claims that the Court should:                                           by monitoring fishing activity and adequately moni-
                                                                                      toring the landing and recording of catches,
—     Declare that, by subjecting alkaline manganese batteries
      containing less than 0,0005 % of mercury by weight to a                   3.    failing to impose a provisional ban on fishing by
      marking system requiring, in particular, indication of the                      vessels flying its flag or registered in its territory
      presence of heavy metals, the Italian Republic has failed                       once the quota allocated to Belgium had to be
      to fulfil its obligations under Article 28 EC;                                  regarded as exhausted,
—     Order the Italian Republic to pay the costs.
                                                                                4.    failing to take penal or administrative measures
                                                                                      against the master or any other person responsible
                                                                                      for fishing after the entry into force of bans on
Pleas in law and main arguments                                                       fishing or in the absence of a quota,
                                                                                the Kingdom of Belgium has failed to fulfil its obligations
Alkaline manganese batteries containing less than 0,0005 %                      under Article 5(2) of Council Regulation (EEC) No 170/
of mercury by weight do not fall within the scope of                            83 ( 1) of 25 January 1983 establishing a Community
Council Directive 91/157/EEC on batteries and accumulators                      system for the conservation and management of fishery
containing certain dangerous substances.                                        resources, Article 9(2) of Council Regulation (EEC)
                                                                                No 3760/92 (2) of 20 December 1992 establishing a
                                                                                Community system for fisheries and aquaculture,
In the absence of harmonisation of national laws as regards                     Articles 1 and 11(1) and (2) of Council Regulation (EEC)
such goods, subjecting them to the marking requirement                          No 2241/87 ( 3) of 23 July 1987 establishing certain
provided for in Article 5(1) and (2) of Decree No 476/97                        control measures for fishing activities and Articles 2,
constitutes a barrier to the free movement of goods contrary                    21(1) and (2) and 31 of Council Regulation (EEC)
to Article 28 EC, there being no obvious overriding reason                      No 2847/93 ( 4) of 12 October 1993 establishing a control
relating to the public interest to justify its adoption.                        system applicable to the common fisheries policy;
                                                                          —     order the Kingdom of Belgium to pay the costs.
Action brought on 1 April 2003 by the Commission                          Pleas in law and main arguments
of the European Communities against the Kingdom of
                               Belgium
                           (Case C-149/03)                                Infringement of Article 5(2) of Regulation (EEC) No 170/83
                                                                          and Article 9(2) of Regulation (EEC) No 3760/92: under these
                                                                          provisions, the Member States are to lay down the criteria for
                           (2003/C 135/22)                                the distribution of the quotas allocated to them and detailed
                                                                          rules for the utilisation of those quotas. The Commission finds
                                                                          that, during the period 1991 to 1996, there was overfishing in
                                                                          respect of 22 fishery resources and that, in several cases, the
An action against the Kingdom of Belgium was brought before               quota was exceeded by more than 10 %, with the result that
the Court of Justice of the European Communities on 1 April               the Kingdom of Belgium has failed to fulfil its obligations.
 ---pagebreak--- C 135/16                 EN                       Official Journal of the European Union                                          7.6.2003
Infringement of Article 1 of Regulation (EEC) No 2241/87 and              The applicant claims that the Court, in upholding its appli-
Article 2 of Regulation (EEC) No 2847/93: these provisions                cation, should:
require the Member States to monitor fishing activity by
vessels flying their flag. In that connection, they must carry
out all necessary inspections. From the figures concerning the
number of cases of overfishing, and the extent thereof, it is             1.    Declare that, by imposing, contrary to Directives 68/
plainly apparent that the Belgian authorities failed to take                    360 ( 1), 73/148 (2) and 90/365 ( 3), the obligations to
the control measures necessary to prevent those cases of                        obtain a residence visa for the issue of a residence permit
overfishing.                                                                    to nationals of a non-Member State, who are members of
                                                                                the family of a Community national who has exercised
                                                                                his right to freedom of movement, and, by not granting,
                                                                                contrary to Directive 64/221 ( 4), a residence permit as
Infringement of Article 11(2) of Regulation (EEC) No 2241/87                    soon as possible and, at the latest, within the six months
and Article 21(2) of Regulation (EEC) No 2847/93: the                           following the application for a permit, the Kingdom of
Belgian authorities clearly acted negligently in regard to the                  Spain has failed to fulfil its obligations under the EC
management of the quotas by failing, in several cases, to                       Treaty.
impose at the appropriate time a closing date for fishing.
                                                                          2.    Order the Kingdom of Spain to pay the costs.
Infringement of Article 1(2) of Regulation (EEC) No 2241/87
and 31 of Regulation (EEC) No 2847/93: where fishing vessels
landed fish after the closing date for fishing of the relevant fish
stock or without a quota for that fish stock having been
allocated to Belgium, the masters of those vessels acted in
breach of Community law. The Belgian authorities were
therefore obliged to institute penal or administrative proceed-
ings against those masters or any other persons responsible.              Pleas in law and main arguments
The Belgian Government has provided no evidence that that
has been done.
( 1) OJ 1983 L 24, p. 1.                                                  The formalities which may be required by a Member State of a
( 2) OJ 1992 L 389, p. 1.                                                 Community national exercising his right to freedom of move-
( 3) OJ 1987 L 207, p. 1.                                                 ment or of a member of his family are clearly circumscribed
( 4) OJ 1993 L 261, p. 1.                                                 by the relevant Community legislation with the result that, in
                                                                          the Commission’s view, it is plainly contrary to the letter and
                                                                          spirit of Community law, as laid down in Directives 68/360,
                                                                          73/148 and 90/360, for a Member State to require any other
                                                                          formality in connection with entry or residence.
                                                                          As a consequence of that premiss, the Commission is of the
                                                                          view that the Spanish legislation and practice, in accordance
Action brought on 7 April 2003 by the Commission of                       with the matters established, conflict with those principles of
the European Communities against the Kingdom of Spain                     Community law. Essentially, the residence visa required under
                                                                          Spanish legislation is an instrument enabling the national
                                                                          authorities to examine — prior to entry into Spanish territory
                          (Case C-157/03)                                 — the reasons why a national of a non-Member State wishes
                                                                          to reside for more than three months on national territory.
                          (2003/C 135/23)
                                                                          The national of a non-Member State who is the member of the
                                                                          family of a Community national exercising the right to
An action against the Kingdom of Spain was brought before                 freedom of movement cannot be assimilated to the national of
the Court of Justice of the European Communities on 7 April               a non-Member State without that family tie. On the contrary,
2003 by the Commission of the European Communities,                       that national of a non-Member State is the beneficiary of
represented by Carmel O’Reilly, Legal Adviser, and by Luis                derived rights under Community law and thus enjoys rights of
Escobar Guerrero, of its Legal Service, with an address for               entry into and residence in the territory of another Member
service in Luxembourg.                                                    State at the same time as the Community national.