Court of Justice of the European Communities (including Court of First Instance Decisions)

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URL: http://www.bailii.org/eu/cases/EUECJ/1978/C9577.html
Cite as: [1978] EUECJ C-95/77

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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.

61977J0095
Judgment of the Court of 11 April 1978.
Commission of the European Communities v Kingdom of the Netherlands.
Metrology.
Case 95/77.
European Court reports 1978 Page 00863
Greek special edition 1978 Page 00305
Portuguese special edition 1978 Page 00325

MEMBER STATES - FAILURE TO APPLY A DIRECTIVE - EFFECT ON THE FUNCTIONING OF THE COMMON MARKET - ABSENCE THEREOF - JUSTIFICATION FOR FAILURE TO FULFIL OBLIGATIONS UNDER A DIRECTIVE - NOT PERMISSIBLE
( EEC TREATY , ART . 169 )

A MEMBER STATE MAY NOT INVOKE , FOR THE PURPOSE OF JUSTIFIYING A FAILURE TO FULFIL OBLIGATIONS UNDER A HARMONIZING DIRECTIVE , THE ARGUMENT THAT THE FAILURE TO APPLY THAT DIRECTIVE HAS HAD NO ADVERSE EFFECT ON THE FUNCTIONING OF THE COMMON MARKET .

IN CASE 95/77
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY R . C . FISCHER , LEGAL ADVISER TO THE COMMISSION , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF MARIO CERVINO , LEGAL ADVISER TO THE COMMISSION , JEAN MONNET BUILDING , KIRCHBERG , LUXEMBOURG ,
APPLICANT ,
V
KINGDOM OF THE NETHERLANDS , REPRESENTED BY A . BOS , ASSISTANT LEGAL ADVISER AT THE MINISTRY FOR FOREIGN AFFAIRS , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE EMBASSY OF THE KINGDOM OF THE NETHERLANDS ,
DEFENDANT ,

APPLICATION FOR A DECLARATION THAT , BY NOT PUTTING INTO FORCE WITHIN THE PRESCRIBED PERIOD THE LAWS , REGULATIONS OR ADMINISTRATIVE PROVISIONS NEEDED IN ORDER TO COMPLY WITH THE PROVISIONS OF COUNCIL DIRECTIVE NO 71/347/EEC OF 12 OCTOBER 1971 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE MEASURING OF THE STANDARD MASS PER STORAGE VOLUME OF GRAIN ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( III ), P . 852 ET SEQ ., AS AMENDED BY ANNEX I TO ARTICLE 29 OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION AND NOTIFIED TO THE MEMBER STATES ON 15 OCTOBER 1971 ), THE KINGDOM OF THE NETHERLANDS HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY ,

1BY APPLICATION LODGED AT THE REGISTRY ON 28 JULY 1977 , THE COMMISSION BROUGHT BEFORE THE COURT , UNDER ARTICLE 169 OF THE EEC TREATY , AN APPLICATION FOR A DECLARATION THAT THE KINGDOM OF THE NETHERLANDS , BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD OF 18 MONTHS THE LAWS , REGULATIONS OR ADMINISTRATIVE PROVISIONS NEEDED IN ORDER TO COMPLY WITH THE PROVISIONS OF COUNCIL DIRECTIVE NO 71/347/EEC OF 12 OCTOBER 1971 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE MEASURING OF THE STANDARD MASS PER STORAGE VOLUME OF GRAIN ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( III ), P . 852 ET SEQ .), HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY .

2THIS DIRECTIVE IS ONE OF A SERIES OF DIRECTIVES RELATING TO MEASURING INSTRUMENTS EXPRESSLY PROVIDED FOR IN THE GENERAL PROGRAMME FOR THE ELIMINATION OF TECHNICAL BARRIERS TO TRADE WHICH RESULT FROM DISPARITIES BETWEEN THE PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION IN MEMBER STATES WHICH WAS ADOPTED BY THE COUNCIL ON 28 MAY 1969 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , SECOND SERIES , IX , P . 25 ).

3THIS GENERAL PROGRAMME WAS IMPLEMENTED BY AN OUTLINE DIRECTIVE OF THE COUNCIL , DIRECTIVE NO 71/316/EEC OF 26 JULY 1971 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO COMMON PROVISIONS FOR BOTH MEASURING INSTRUMENTS AND METHODS OF METROLOGICAL CONTROL ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION ( II ), P . 707 ), WHOSE AIM WAS ESSENTIALLY TO HARMONIZE THE NATIONAL PROVISIONS RELATING TO THE CONTROL OF THOSE INSTRUMENTS AND WHICH WAS BASED ON THE FUNDAMENTAL PRINCIPLE OF MUTUAL RECOGNITION OF CONTROLS .

4WITH THIS GENERAL OBJECTIVE IN MIND , DIRECTIVE NO 71/347/EEC AIMS MORE PARTICULARLY TO HARMONIZE THE LEGISLATION OF THE VARIOUS MEMBER STATES RELATING TO THE STANDARD MASS PER STORAGE VOLUME OF GRAIN , IN PARTICULAR BY GIVING A UNIFORM DEFINITION OF THE EEC STANDARD MASS PER STORAGE VOLUME BY INTRODUCING A REFERENCE STANDARD INSTRUMENT AND LAYING DOWN THE CONDITIONS WHICH MUST BE SATISFIED BY THE MEASURING INSTRUMENTS USED TO DETERMINE THE EEC STANDARD MASS PER STORAGE VOLUME .

5THUS THE EXCLUSIVE AND COMPULSORY USE OF AN EEC STANDARD MASS PER STORAGE VOLUME IN ALL MEMBER STATES WILL HAVE THE EFFECT OF PREVENTING DISPUTES IN INTRA-COMMUNITY TRADE ABOUT THE METHOD OF MEASURING GRAIN .

6UNDER ARTICLE 7 OF DIRECTIVE NO 71/347/EEC , THE MEMBER STATES MUST ADOPT THE APPROPRIATE MEASURES FOR COMPLYING THEREWITH WITHIN A PERIOD OF 18 MONTHS OF ITS NOTIFICATION ; THAT PERIOD EXPIRED ON 15 APRIL 1973 WITHOUT THE NETHERLANDS AUTHORITIES ' HAVING PUT INTO FORCE THE LAWS , REGULATIONS OR ADMINISTRATIVE PROVISIONS NEEDED .

7THE COMMISSION , IN APPLICATION OF ARTICLE 169 OF THE EEC TREATY , GAVE THE KINGDOM OF THE NETHERLANDS , BY LETTER OF 14 FEBRUARY 1975 , THE OPPORTUNITY TO SUBMIT ITS OBSERVATIONS .

8THE DEFENDANT HAS NOT DENIED THE FAILURE TO FULFIL OBLIGATIONS UNDER THE TREATY COMPLAINED OF AND HAS EXPRESSED ITS REGRETS AT HAVING BEEN UNABLE TO ADOPT THE NECESSARY PROVISIONS OF NATIONAL LAW IN DUE TIME AND INFORMED THE COMMISSION OF THE PROGRESS OF THE IMPLEMENTING MEASURES , POINTING OUT THAT THE ABSENCE OF LAWS , REGULATIONS OR ADMINISTRATIVE PROVISIONS IN THE FIELD COVERED BY DIRECTIVE NO 71/347/EEC HAS HAD NO ADVERSE EFFECT ON THE FUNCTIONING OF THE COMMON MARKET .

9INITIALLY , THE INTENTION OF THE NETHERLANDS GOVERNMENT HAD BEEN TO IMPLEMENT THE EEC DIRECTIVES IN THE FIELD OF METROLOGY ON THE BASIS OF A BENELUX CONVENTION OF 11 MARCH 1970 RATIFIED BY THE NETHERLANDS ON 30 NOVEMBER 1972 .
10AS THAT CONVENTION HAD NOT BEEN RATIFIED BY BELGIUM AND LUXEMBOURG AND BECAUSE THE COMMISSION HAD CONTINUED THE PROCEDURE UNDER ARTICLE 169 OF THE TREATY ON 22 DECEMBER 1975 BY SENDING THE NETHERLANDS GOVERNMENT THE REASONED OPINION PROVIDED FOR IN THAT ARTICLE , THE KINGDOM OF THE NETHERLANDS DECIDED TO ADOPT ANOTHER COURSE AND TO AMEND THE IJKWET ( LAW ON WEIGHTS AND MEASURES ) OF 1937 , STAATSBLAD NO 627 , SO AS TO HAVE AVAILABLE AN APPROPRIATE ENACTMENT FOR THE PURPOSE OF IMPLEMENTING THE EEC DIRECTIVES IN THE FIELD OF METROLOGY .

11ON 2 JUNE 1976 THE LAW AMENDING THE IJKWET WAS PASSED , ENABLING THE NETHERLANDS AUTHORITIES TO ADOPT A MEASURE WHICH , FOR THE PURPOSE OF IMPLEMENTING DIRECTIVE NO 71/347 / EEC , HAD TO BE FOLLOWED BY SPECIFIC AND MORE DETAILED RULES IN RESPECT OF WHICH THE NETHERLANDS GOVERNMENT DECLARED IN ITS PLEADINGS AND AT THE HEARING ON 21 FEBRUARY 1978 THAT IT HOPED TO BE ABLE TO BRING THEM INTO FORCE DURING 1978 .
12THIS DOES NOT ALTER THE FACT THAT THE MEASURES INTENDED TO IMPLEMENT THE DIRECTIVE HAVE NOT BEEN ADOPTED WITHIN THE PRESCRIBED PERIOD .

13THE ARGUMENT THAT THE FAILURE TO APPLY THAT DIRECTIVE HAS HAD NO ADVERSE EFFECT ON THE FUNCTIONING OF THE COMMON MARKET CANNOT BE ACCEPTED IN VIEW OF THE OBJECTIVE PURSUED BY THAT DIRECTIVE .

14IT FOLLOWS THAT , SINCE THE KINGDOM OF THE NETHERLANDS HAS NOT PUT INTO FORCE WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED TO COMPLY WITH COUNCIL DIRECTIVE NO 71/347/EEC ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE MEASURING OF THE STANDARD MASS PER STORAGE VOLUME OF GRAIN , IT HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY .

COSTS
15/17UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS , IF THEY HAVE BEEN ASKED FOR . THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS . IT IS THEREFORE NECESSARY TO ORDER IT TO PAY THE COSTS .

ON THOSE GROUNDS
THE COURT
HEREBY :
1 . DECLARES THAT , BY NOT PUTTING INTO FORCE WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED TO COMPLY WITH COUNCIL DIRECTIVE NO 71/347/EEC OF 12 OCTOBER 1971 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE MEASURING OF THE STANDARD MASS PER STORAGE VOLUME OF GRAIN , THE KINGDOM OF THE NETHERLANDS HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY .

2 . ORDERS THE DEFENDANT TO PAY THE COSTS .