CELEX: C1997/228/12
Language: en
Date: 1997-07-26 00:00:00
Title: Action brought on 30 May 1997 by the Commission of the European Communities against the Kingdom of Belgium (Case C-207/97)

No C 228/6            EN                   Official Journal of the European Communities                                    26 . 7. 97
    legislation of a Member State remedies are available in           individual actions for enforcement from being taken
    respect of acts of the administration generally and               or pursued after the measure initiating the special
    different remedies are available in respect of decisions          administration procedure has been adopted ?
     concerning entry by nationals of that Member State,
     the obligation imposed on the Member State by that
    provision is satisfied if nationals of other Member
     States enjoy the same remedies as those available
     against acts of the administration generally in that             Action brought on 30 May 1997 by the Commission of
     Member State.                                                    the European Communities against the Kingdom of
                                                                                                      Belgium
                                                                                                 Case C-207/97 )
2 . On a proper construction of Article 9 of Directive 64/
     221 /EEC, the three cases mentioned in Article 9 (1 )                                        ( 97/C 228/ 12 )
     (namely 'where there is no right of appeal to a court
     of law, or where such appeal may be only in respect of           An action against the Kingdom of Belgium was brought
     the legal validity of the decision, or where the appeal          before the Court of Justice of the European Communities
     cannot have suspensory effect') apply equally as                 on 30 May 1997 by the Commission of the European
     regards Article 9 (2), that is to say, where the decision        Communities, represented by Richard B. Wainwright,
     challenged is a refusal to issue a first residence permit        Principal Legal Adviser, and Jean-Francis Pasquier, a
     or a decision ordering expulsion adopted before the              national civil servant on secondment to the Legal Service,
     issue of such a permit.                                          acting as Agents, with an address for service in
                                                                      Luxembourg at the office of Carlos Gomez de la Cruz,
3 . A national of a Member State against whom an initial              Wagner Centre, Kirchberg.
     decision refusing entry into another Member State has
     been made on grounds of public order or public                   The applicant claims that the Court should:
     security has a right of appeal under Article 8 of the            — declare that, by failing, in breach of Article 7 of
     directive and, if appropriate, a right to obtain the                   Directive 76/464/EEC ( x ), to adopt the programmes
      opinion of an independent competent authority in                      for the reduction of pollution incorporating quality
     accordance with Article 9 of the Directive, with                       objectives, at least as regards the 99 substances listed
      respect to a fresh decision taken by the administrative               in the annex to the application, or by failing to
     authorities on an application made by him after a                      communicate to the Commission summaries of the
      reasonable time has elapsed since the last decision                   programmes in question and the results of the
     prohibiting him from entering the country.                             application thereof, the Kingdom of Belgium has failed
                                                                            to fulfil its obligations under the EC Treaty,
(■) OJ No C 159 , 24 . 6 . 1995 .
                                                                       — order the Kingdom of Belgium to pay the costs .
                                                                       Pleas in law and main arguments adduced in support:
                                                                       The Directive, which entered into force on the date of its
                                                                       notification, that is to say, 5 May 1976, pursuant to
Reference for a preliminary ruling by the Corte Suprema                Article 191 of the EEC Treaty ( which applied at that
di Cassazione — Sezione Prima Civile by order of that                  time ), does not expressly prescribe the period within
court of 10 February 1997 in the case of Ecotrade Sri                  which the obligations therein set out were to be
       against AFS — Altiforni e Ferriere di Servola SpA               specifically implemented. However, as regards the national
                          ( Case C-200/97                              programmes for the reduction of pollution caused by the
                                                                       substances referred to in List II in the Annex to the
                            ( 97/C 228/ 11
                                                                       Directive, it is apparent from Articles 7 and 12 of the
                                                                       Directive that the Member States were obliged, in
 Reference has been made to the Court of Justice of the                principle, to draw up the programmes and to
 European Communities by order of the Corte Suprema di                 communicate summaries of them to the Commission by
 Cassazione — Sezione Prima Civile ( Supreme Court of                  5 August 1978 ; nevertheless, by letter dated 3 November
 Cassation, First Civil Division ) of 10 February 1997,                1976, the Commission proposed that the Member States
 which was received at the Court Registry on 26 May                    should act on the basis of the following dates :
 1997, for a preliminary ruling in the case of Ecotrade Sri            15 September 1981 for the programmes for the reduction
 against AFS — Altiforni e Ferriere di Servola SpA on the              of pollution caused by the substances referred to in List II
 following question :                                                  and 15 September 1986 for the implementation of those
                                                                       programmes .
 May a State measure adopted pursuant to Law No 95                     The Commission does not claim that the list of the 99
 which provides for the exemption of large enterprises in              priority substances annexed to the letter before action and
 difficulties from the usual insolvency proceedings and at             the reasoned opinion constitutes a legally binding
 the same time for the enterprise to continue trading be               measure; however, it considers that, so long as the Council
 regarded as aid within the meaning of Article 92 et seq. of           has not fixed emission limit values in respect of substances
 the Treaty, in view of the fact that Decree Law No 414 of             which ought to appear in List I, they must still be treated
 31 July 1981 ( converted into Law No 544/ 1981 ) precludes             as falling within List II .
 ---pagebreak--- 26 . 7. 97             EN                    Official Journal of the European Communities                                   No C 228/7
The Commission further considers that neither the steps                 Action brought on 2 June 1997 by the Commission of the
taken by Belgium with regard to the protection of the                   European Communities against the Council of the
North Sea nor the (national and regional ) Belgian rules                                       European Union
constitute programmes for the reduction of pollution                                           ( Case C-209/97)
within the meaning of Article 7 of the directive.
                                                                                                 ( 97/C 228/ 14 )
H OJ No L 129, 18 . 5 . 1976, p . 23 .
                                                                        An action against the Council of the European Union was
                                                                        brought before the Court of Justice of the European
                                                                        Communities on 2 June 1997 by the Commission of the
                                                                        European Communities, represented by Michel Nolin and
Action brought on 30 May 1997 by the Commission of                      Pieter Van Nuffel, acting as Agents, with an address for
the European Communities against the Portuguese
                                                                        service in Luxembourg at the office of Carlos Gomez de la
                                                                        Cruz, Wagner Centre.
                                Republic
                          ( Case C-208/97)
                                                                        The Commission of the European Communities claims
                            ( 97/C 228/13 )                             that the Court should :
An action against the Portuguese Republic was brought                   — annul      Council     Regulation    ( EC )   No   515/97  of
before the Court of Justice of the European Communities                     13 March 1997 on mutual assistance between the
on 30 May 1997 by the Commission of the European                            administrative authorities of the Member States and
Communities, represented by Francisco de Sousa Fialho,                      cooperation between the latter and the Commission to
of its Legal Service, acting as Agent, with an address for                  ensure the correct application of the law on customs
service in Luxembourg at the office of Carlos Gomez de la                   and agricultural matters ( j ),
Cruz, Wagner Centre, Kirchberg.
                                                                        — maintain in force, pursuant to Article 174 of the EC
The applicant claims that the Court should:                                 Treaty, Titles V and VI of the abovementioned
                                                                            Regulation,
— declare that, by failing to adopt all the laws,
     regulations or administrative provisions necessary to
     comply with Council Directive 84/156/EEC ( J ) of                  — order the defendant to pay the costs .
     8 March 1984 on limit values and quality objectives
     for mercury discharges by sectors other than the chlor­            Pleas in law and main arguments adduced in support:
     alkali electrolysis industry, inasmuch as it neither drew
     up or implemented the specific programmes provided
     for in Article 4 thereof, the Portuguese Republic has              — Incorrect legal basis :
     failed to fulfil its obligations under the third
     paragraph of Article 189 of the EC Treaty and                          The Regulation at issue could have been based on
     Article 4 of Directive 84/156/EEC,                                     Article 100a of the EC Treaty, so as to exclude
                                                                            reliance on Article 235 thereof. It is submitted that:
— declare, in the alternative, that, by failing forthwith to
     inform    the   Commission          of such   measures,   the          — like the previous regulation ( Regulation ( EEC )
     Portuguese Republic failed to fulfil its obligations                        No    1468/81 ),    Regulation      ( EC ) No   515/97
     under those provisions,                                                     constitutes a measure for the harmonization of the
                                                                                 national laws of the Member States . That initial
                                                                                 regulation was based on Article 235 of the EC
 — order the Portuguese Republic to pay the costs .
                                                                                 Treaty because, at the time of its adoption,
                                                                                 Article 100a of the EC Treaty, which was
 Pleas in law and main arguments adduced in support:                             introduced by the Single European Act, was not
                                                                                 yet in existence . Indeed, the last recital in the
 Under the third paragraph of Article 189 of the EC Treaty,                      preamble shows that, according to the Council,
 a directive is to be binding, as to the result to be achieved,                  Article 235 is relied on only as regards the
 upon each Member State to which it is addressed. In the                         establishment of the new ' CIS' database ( Customs
 present case, the Directive was fully applicable as from                        Information System — see Articles 23 to 41 of the
 13 March 1986 and the specific programmes provided for                          Regulation in issue ).
 in Article 4 thereof applied as from 1 January 1989 .
 Despite the prescribed periods having expired, the                              However, the CIS cannot be regarded as an
 Portuguese Republic did not draw up or apply the                                autonomous Community entity. The Member
 abovementioned specific programmes or, in any event, did                        States are, as such, ' CIS partners', as is the
 not inform the Commission thereof.                                              Commission, which does not play a central role in
                                                                                 the CIS but performs a coordinating function .
 (') OJ No L 74 , 17. 3 . 1984, p . 49 .
                                                                                 The Commission considers, in the alternative, that
                                                                                 even if it was necessary, in view of the