24.5.2008

EN

Official Journal of the European Union

C 128/22

(Case C-100/08)

(2008/C 128/40)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillan and R. Troosters, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

The Commission claims that the Court should,

1.Declare that the Kingdom of Belgium has failed to fulfil its obligations under Article 28 of the Treaty establishing the European Community by

—making the import, keeping and sale of specimens of birds born and bred in captivity that were brought to the market legally in other Member States subject to restrictive conditions that require the market participants concerned to alter the marking of the birds so as to comply with the special Belgian requirements, and failing to recognise the marking recognised in other Member States or the certificates issued for this purpose by the CITES authorities;

—denying traders the possibility to receive exemptions from the prohibition to keep indigenous European birds which were brought to the market legally in other Member State.

2.Order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Royal Decree of 9 September 1981 on the protection of birds in the Flemish Region and the Royal Decree of 26 October 2001 on measures concerning the import, export and transit of certain species of non-indigenous wild birds contain provisions pursuant to which (1) the import, keeping and sale of specimens of birds born and bred in captivity that were brought to the market legally in other Member States are subject to restrictive conditions, and (2) traders are denied the possibility to receive exemptions from the prohibition to keep indigenous European birds that were brought to the market legally in other Member States.

The Commission submits that those measures constitute measures having equivalent effect to quantitative restrictions and are therefore, as a matter of principle, prohibited under Article 28 EC. First, the conditions created by the Belgian legal provisions have the effect of requiring changes to the manner in which specimens of birds that were brought to the market legally in other Member States are presented and, second, trade is also restricted as a result of the prohibition on traders to keep certain birds that were brought to the market legally in other Member States.

The Commission does not exclude in general that certain restrictions on trade can be justified in this context under Article 30 EC if they aim to protect rare species with specific characteristics. However, this is not what the Belgian legal provisions aim to do. In addition, the Belgian provisions are neither necessary nor proportionate to, where required, achieve such a legitimate aim.