CELEX: C1997/212/24
Language: en
Date: 1997-07-12 00:00:00
Title: Reference for a preliminary ruling by the Tribunal du Travail de Bruxelles, by judgment of that court of 21 April 1997, in the case of Barry Bank and Others against the Théâtre Royal de la Monnaie (Case C-178/97)

No C 212/ 14           EN                    Official Journal of the European Communities                                            12 . 7 . 97
The applicant claims that the Court should :                            provisions . The purpose of the agreement is not even to
                                                                        protect the natural environment.
— declare that, by failing to adopt special conservation
     measures concerning the habitats of birds in the Seine             Breach of Article 4 ( 4 ) of the Directive
     estuary and to take appropriate steps to avoid
     deterioration of those habitats, the French Republic               The establishment of a plant for the treatment            and deposit
     has failed to fulfil its obligations under Directive 79/           of titanogypsum in the estuary constitutes                a manifest
     409/EEC ( 1 ),
                                                                        deterioration of the habitat in question . No             importance
                                                                        can be attached to the fact that the plant is             outside the
— order the French Republic to pay the costs .                          area designated a SPA. The plant is in an                 area which
                                                                        should have been designated a SPA.
Pleas in law and main arguments adduced in support:                     (') Council Directive 79/409/EEC of 2 April 1979 on the
                                                                             conservation of wild birds ( OJ No L 103 , 25 . 4 . 1979 , p. 1 ).
The Seine estuary is one of the most important wetland
areas on the French coast from the ornithological point of
view and is visited by numerous species listed in Annex I
to Directive 79/409/EEC on the conservation of wild
birds . According to a scientific inventory of important
areas for the conservation of birds ( Zones Importantes                 Reference for a preliminary ruling by the Tribunal du
pour la conservation des Oiseaux ( ZICO )) published in                 Travail de Bruxelles, by judgment of that court of 21 April
1994 under the auspices of the French Ministry of the                   1997, in the case of Barry Bank and Others against the
Environment, an area covering 21 900 hectares in the                                         Theatre Royal de la Monnaie
Seine estuary is identified as a site of major interest                                              Case C-178/97)
harbouring a number of wild birds regarded as being of
Community or international significance according to                                                  ( 97/C 212/24 )
classification criteria corresponding to those contained in
Directive 79/409/EEC .
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by judgment of the Tribunal du
Breach       of     Article    4    (1 )   and     (2)   of   the       Travail de Bruxelles ( Brussels Labour Court ) of 21 April
Directive
                                                                        1997, received at the Court Registry on 7 May 1997, for
                                                                        a preliminary ruling in the case of Barry Bank and Others
The French authorities concluded an agreement with the                  against the Theatre Royal de la Monnaie on the following
                                                                        questions:
independent ports of Le Havre and Rouen to create a
reserve area of 3 350 hectares, made up of 2 000 hectares
of predominantly ecological interest and 1 300 hectares                 I.     1 . Does the concept of 'work' in Article 14a ( 1 ) ( a ) of
for industrial and port use where the natural environment                            Regulation ( EEC ) No 1408/71 (') refer to any
would be preserved until they were used. 2 750 hectares of                           work, whether paid employment or self­
that agreed reserve were designated a special protection                             employment, the duration of which does not
area ( SPA ) within the meaning of the Directive.                                    exceed 12 months ?
The surface of the SPA thus delimited is completely                            2 . If the concept of 'work' within the meaning of
inadequate and bears no relation to the significance of the                          Article 14 ( 1 ) ( a ) refers exclusively to work by a
ornithological site . It is clear from the Court's judgment of                       self-employed person, should this concept be
2 August 1993 in Case C-355/90 ( Commission v. Spain                                 defined by reference to the social security
 [ 1993 ] ECR p. 4221 ), that although Member States have a                          legislation of the Member State in which the
certain margin of discretion with regard to the choice of                            person is normally self-employed or by reference
SPAs, the classification of those areas is nevertheless                              to the social security legislation of the Member
                                                                                     State in which the ' work ' is done ?
subject to certain ornithological criteria determined by the
Directive . A Member State does not comply with those
 criteria and thus fails to fulfil its obligations where it fails       II . What is the relevant unit of time which should be
to classify the parts of a habitat of particular importance                    taken into account in defining the term
 for birds in danger of extinction within the meaning of                       'simultaneously' in Article 14c of Regulation ( EEC )
 Article 4 ( 1 ) ( a ) of the Directive or where it fails to                   No 1408/71 , or by what criteria can this term be
 classify wetlands of special importance for the migratory                     defined ?
 species referred to in Article 4 ( 4 ) of the Directive.
                                                                         III . ( a ) 1 . Does Form E 101 , the issue of which is
 The protection system which results from the reserve                                     provided for, in particular, by Articles 11a and
 which it was agreed to set up is inadequate . A mere                                     12a ( 7) of Regulation ( EEC ) No 2001 /83 (2 ),
 agreement has only legal effects limited to the parties. No                              have binding force as regards the legal
 mechanism is provided to ensure compliance with its                                      consequences attested to therein:
 ---pagebreak--- 12 . 7 . 97               EN                       Official Journal of the European Communities                                    No C 212/ 15
                 — with respect to the competent institution of               1.    In view of the fact that the tassa di concessione
                     the Member State in which the second                           governative ( administrative charge ) for entering
                     activity is pursued ?                                          companies in the Register of Companies is unlawful in
                 — with respect to the person employing a                           so far as it infringes Council Directive 69/335/EEC of
                     worker pursuing an activity in two                             17 July 1969 concerning indirect taxes on the raising
                     Member States ?                                                of capital ( 1 ), is the application to claims for
                                                                                    reimbursement of the three-year limitation period laid
             2 . If so, until when ?                                                down by Article 13 of Presidential Decree 641 /72
                                                                                    compatible with Community law, or does it constitute
       ( b ) Does Form E 101 have retroactive effect in so far                      failure to apply Directive 69/335/EEC, having regard
             as the periods to which it relates have already                        to the fact that 'so long as a Directive has not been
             come to an end at the time when the form is
                                                                                    properly transposed into national law, individuals are
             issued or produced ?                                                   unable to ascertain the full extent of their rights'?
(') Official Journal , English Special Edition 1971 II, p. 416 .
( 2 ) OJ No L 230, 22 . 8 . 1983 , p. 6 .                                     2 . In the absence of a specific provision in Presidential
                                                                                    Decree 331 /93 governing the limitation period for the
                                                                                    reimbursement of undue payments, do the combined
                                                                                    provisions of Articles 2934 and 2946 of the Civil
                                                                                    Code apply, having regard to the fact that the payment
                                                                                    in question is not due ( Article 2033 of the Civil
Reference for a preliminary ruling by the Hoge Raad der                             Code )?
Nederlanden of 7 May 1997, in the case of A. J. van der
           Kooy against the Staatssecretaris van Financien                    3 . Independently of Questions 1 and 2, do the time limits
                             ( Case C-181/97)                                       laid down by Article 13 of Presidential Decree 641 /72
                                 ( 97/C 212/25 )
                                                                                    and Article 2946 of the Civil Code, respectively, start
                                                                                    to run from the date of payment or, having regard to
                                                                                    the principle referred to above that ' so long as a
Reference has been made to the Court of Justice of the                              Directive has not been properly transposed into
European Communities by judgment of the Hoge Raad                                    national law, individuals are unable to ascertain the
 der Nederlanden ( Supreme Court of the Netherlands ) of                             full extent of their rights', from the date of publication
 7 May 1997, received at the Court Registry on 9 May                                 of Presidential Decree 331 /93 in the Gazzetta Ufficiale
 1997, for a preliminary ruling in the case of A. J. van der                         della Repubblica Italiana ?
 Kooy against the Staatssecretaris van Financien on the
 following question:                                                           (') Official Journal, English Special Edition 1969 II, p. 412.
 In the light of Articles 132 ( 1 ) and 227 of the EC Treaty,
 is Article 7 ( 1 ) ( a ) of the sixth Directive to be interpreted
 as meaning that the importation into the Netherlands of a
 ship which was previously in free circulation in the
 Netherlands Antilles is to be regarded as the entry into the
 Community of a product which does not fulfil the                             Action brought on 9 May 1997 by the Commission of the
 conditions of Articles 9 and 10 of the EC Treaty ?                            European Communities against the Federal Republic of
                                                                                                             Germany
                                                                                                         Case C-184/97)
                                                                                                          ( 97/C 212/27)
  Reference for a preliminary ruling by the Tribunale di                       An action against the Federal Republic of Germany was
  Brescia, Terza Sezione Civile, by order of that court of                     brought before the Court of Justice of the European
  16 November           1996 in the case of Società Palazzo                    Communities on 9 May 1997 by the Commission of the
  Piacentini Srl against Amministrazione Finanziaria dello                     European Communities, represented by Gotz zur Hausen,
                                        Stato
                                                                               Legal Adviser, acting as Agent, with an address for service
                               ( Case C-l 82/97)                               in Luxembourg at the office of Carlos Gomez de la Cruz,
                                   ( 97/C 212/26 )
                                                                               of the Commission's Legal Service, C 254 Wagner Centre,
                                                                               Kirchberg.
  Reference has been made to the Court of Justice of the
                                                                                The applicant claims that the Court should:
  European Communities by order of the Tribunale ( District
   Court ), Terza Sezione Civile (Third Civil Division),
   Brescia , of 16 November 1996 , received at the Court                        1 . declare that, by failing to establish programmes, in
   Registry on 12 May 1997, for a preliminary ruling in the                           accordance with Article 7 of Council Directive 76/464/
   case of Societa Piacentini Sri against Amministrazione                             EEC of 4 May 1976 on pollution caused by certain
   dello Stato ( State Finance Administration ) on the                                dangerous substances discharged into the aquatic
   following questions :                                                              environment of the Community ( 1 ), with quality