CELEX: C2001/348/32
Language: en
Date: 2001-12-08 00:00:00
Title: Case C-393/01: Action brought on 8 October 2001 by the French Republic against the Commission of the European Communities

8.12.2001              EN                   Official Journal of the European Communities                                        C 348/17
The applicant claims that the Court should:                                  Council of 16 February 1998 concerning the placing of
                                                                             biocidal products on the market (1) the Portuguese Repub-
—     declare that, by failing to adopt and bring into force                 lic has failed to fulfil its obligations under Articles 34(1)
      within the prescribed period the laws, regulations and                 of that Directive,
      administrative provisions necessary to comply with
      Council Directive 97/43/Euratom of 30 June 1997 on               —     in the alternative, declare that, by failing to inform
      health protection of individuals against the dangers of                the Commission immediately of such measures, the
      ionising radiation in relation to medical exposure, and                Portuguese Republic failed to fulfil its obligations under
      repealing Directive 84/466/Euratom (1), the Portuguese                 that Directive,
      Republic has failed to fulfil its obligations under
      Articles 14 of that Directive,                                   —     order the Portuguese Republic to pay the costs.
—     in the alternative, declare that, by failing to inform
      the Commission immediately of such measures, the
      Portuguese Republic failed to fulfil its obligations under       Pleas in law and main arguments
      that Directive,
—     order the Portuguese Republic to pay the costs.                  The mandatory nature of the provisions of the third paragraph
                                                                       of Article 249 and the first paragraph of Article 10 of the EC
                                                                       Treaty requires Member States to adopt the measures necessary
                                                                       to transpose directives addressed to them into their domestic
Pleas in law and main arguments                                        law before the expiry of the period prescribed for doing so.
                                                                       That period expired on 14 May 2000 without the Portuguese
                                                                       Republic having brought into force the necessary provisions
The pleas in law and main arguments are similar to those put           to transpose Directive 98/8/EC into its domestic law.
forward in Case C-389/01.
                                                                       (1) OJ L 123, 24.4.1998, p. 1.
( 1) OJ L 180, 9.7.1997, p. 22.
                                                                       Action brought on 8 October 2001 by the French Repub-
Action brought on 9 October 2001 by the Commission                     lic against the Commission of the European Communities
of the European Communities against the Portuguese
                              Republic                                                          (Case C-393/01)
                         (Case C-391/01)                                                        (2001/C 348/32)
                         (2001/C 348/31)
                                                                       An action against the Commission of the European Communi-
                                                                       ties was brought before the Court of Justice of the European
An action against the Portuguese Republic was brought                  Communities on 8 October 2001 by the French Republic,
before the Court of Justice of the European Communities                represented by G. de Bergues and R. Loosli-Surrans, acting as
on 9 October 2001 by the Commission of the European                    agents, with an address for service in Luxembourg.
Communities, represented by António Caeiros, acting as
Agent, with an address for service in Luxembourg at the office
of Luis Escobar Guerrero, Wagner Centre.                               The French Republic claims that the Court should:
                                                                       —     annul Commission Decision 2001/577/EC of 25 July
The applicant claims that the Court should:                                  2001 setting the date on which dispatch from Portugal
                                                                             of bovine products under the date-based export scheme
—     declare that, by failing to adopt and bring into force                 may commence by virtue of Article 22(2) of Decision
      within the prescribed period the laws, regulations and                 2001/376/EC (1),
      administrative provisions necessary to comply with
      Directive 98/8/EC of the European Parliament and of the          —     order the Commission to pay the costs.
 ---pagebreak--- C 348/18                EN                    Official Journal of the European Communities                                     8.12.2001
Pleas in law and main arguments                                          Action brought on 15 October 2001 by the Federal
                                                                         Republic of Germany against the European Parliament
                                                                                    and the Council of the European Union
—     Infringement of the conditions laid down by Decision
      2001/376/EC (2), the Commission adopted Decision                                           (Case C-406/01)
      2001/577/EC without having carried out all the inspec-
      tions prescribed by Article 21 of Decision 2001/376/EC.
      The last inspection report of the Food and Veterinary                                      (2001/C 348/33)
      Office communicated to the French Republic before the
      decision of 25 July 2001 was the report of 25 to 27 June
      2001 in its final version DG(SANCO)3345/2001, which
      does not examine the development of the incidence of
      the disease and the effective enforcement of the relevant          An action against the European Parliament and the Council of
      national measures and does not contain a risk assessment           the European Union was brought before the Court of Justice
      demonstrating whether appropriate measures to manage               of the European Communities on 15 October 2001 by the
      any risk have been taken. It is apparent from the                  Federal Republic of Germany, represented by Wolf-Dieter
      conclusions of that report that, at the time when the              Plessing, Ministerialrat, Moritz Lumma, Oberregierungsrat,
      inspection report was submitted, the desired legislation           both of the Federal Ministry of Finance, 108 Graurheindorfer
      was not yet in force and certain Food and Veterinary               Straße, D-53117 Bonn, and Jochim Sedemund, Rechtsanwalt,
      Office inspections were still awaited in order to avoid the        of Freshfields Bruckhaus Deringer, 1 Potsdamer Platz,
      risk of ‘cross-contamination’ which have been revealed in          D-10785 Berlin.
      other countries. The Portuguese decree-law which sets
      out the DBES was not approved until 12 July 2001, that
      is to say two weeks before the lifting of the ban fixed for
      1 August 2001, and the DBES application manual was to              The applicant claims that the Court should:
      be submitted to the Minister for Agriculture on 14 July.
      The French Government therefore considers that ‘effective
                                                                         1.    Annul Article 3(1) in conjunction with Article 3(2) of
      enforcement of the relevant national measures’, within
                                                                               Directive 2001/37/EC of the European Parliament and of
      the meaning of Article 21(2) was not ensured at the time
                                                                               the Council of 5 June 2001 on the approximation of the
      when the decision setting the date for the lifting of the
                                                                               laws, regulations and administrative provisions of the
      ban was adopted.
                                                                               Member States concerning the manufacture, presentation
                                                                               and sale of tobacco products (1), in so far as those
      Nor could the operational effectiveness of the procedures                provisions prohibit the manufacture of cigarettes for
      set up be checked, either in terms of traceability of bovine             export from the European Community to non-member
      products or in terms of tests on cattle, on the date on                  countries;
      which the contested decision was adopted any more than
      it could on the date set for the partial lifting of the ban.       2.    Order the defendants to pay the costs.
      Accordingly, the Commission infringed Article 22 of
      Decision 2001/376/EC.
—     Infringement of the precautionary principle: while                 Pleas in law and main arguments
      Article 174 EC falls within the framework of Community
      environmental policy, Community case-law does not                  —     Article 95 EC is not an adequate legal basis for the
      confine the precautionary principle to that field alone                  contested prohibition of export. Approximation
      and extends it to public health objectives. The nature and               measures under Article 95 EC must have as their subject
      seriousness of the risks relating to BSE warrant full                    the elimination of differences between the legal systems
      compliance with the precautionary principle.                             of the Member States with the aim of eliminating
                                                                               distortions of competition in relations between the
                                                                               Member States or preventing them from occurring.
                                                                               Measures which concern exports to non-member
                                                                               countries are not covered by Article 95 EC. The internal
(1) OJ L 203, 28.7.2001, p. 27.                                                market aim of removing barriers to trade which result
(2) Commission Decision 2001/376/EC concerning measures made                   from differing national rules is achieved already by
    necessary by the occurrence of bovine spongiform encephalopa-              the prohibition of marketing. That a prohibition of
    thy in Portugal and implementing a date-based export scheme (OJ            manufacture is not necessary for that purpose is shown
    L 132, 15.5.2001, p. 17).
                                                                               by the fact that all comparable harmonisation directives
                                                                               (for example, in the field of regulating additives to
                                                                               foodstuffs) confine themselves to prohibitions of market-
                                                                               ing and do not lay down prohibition of manufacture. The
                                                                               prohibition of manufacture in the contested Directive
                                                                               thus in fact pursues exclusively the aim of the protection