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Cite as: [1994] EUECJ C-52/93, [1994] ECR I-3591

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61993J0052
Judgment of the Court (Sixth Chamber) of 14 July 1994.
Commission of the European Communities v Kingdom of the Netherlands.
Failure of a Member State to fulfil its obligations - Obligation to give prior notification under Directive 83/189/EEC.
Case C-52/93.
European Court Reports 1994 page I-3591

++++
Member States ° Obligations ° Implementation of directives ° Failure to fulfil obligations not disputed
(EEC Treaty, Art. 169)

In Case C-52/93,
Commission of the European Communities, represented by H. Van Lier, Legal Adviser, and V. Melgar, a French civil servant on secondment to the Legal Service of the Commission, acting as Agents, with an address for service in Luxembourg at the office of G. Kremlis, of its Legal Service, Wagner Centre, Kirchberg,
applicant,
v
Kingdom of the Netherlands, represented by J.W. de Zwaan and T. Heukels, Assistant Legal Advisers at the Ministry of Foreign Affairs, acting as Agents, with an address for service in Luxembourg at the Netherlands Embassy, 5 Rue C.M. Spoo,
defendant,
APPLICATION for a declaration that, by adopting on 9 October 1990 Amendment XIII to the PVS regulation on quality standards for flower bulbs (iris, lily) without notifying it to the Commission at the drafting stage, the Kingdom of the Netherlands has failed to fulfil its obligations under Articles 8 and 9 of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1983 L 109, p. 8),
THE COURT (Sixth Chamber),
composed of: G.F. Mancini, President of the Chamber, M. Diez de Velasco (Rapporteur), C.N. Kakouris, F.A. Schockweiler and P.J.G. Kapteyn, Judges,
Advocate General: W. Van Gerven,
Registrar: D. Louterman-Hubeau, Principal Administrator,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 21 April 1994,
after hearing the Opinion of the Advocate General at the sitting on 18 May 1994,
gives the following
Judgment

1 By application lodged at the Court Registry on 26 January 1993, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by adopting on 9 October 1990 Amendment XIII to the PVS regulation on quality standards for flower bulbs (iris, lily) without notifying it to the Commission at the drafting stage, the Kingdom of the Netherlands has failed to fulfil its obligations under Articles 8 and 9 of Council Directive 83/189/EEC laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1983 L 109, p. 8, hereinafter "Directive 83/189").
2 The first subparagraph of Article 8(1) of Directive 83/189 provides that:
"Member States shall immediately communicate to the Commission any draft technical regulation, except where such technical regulation merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a brief statement of the grounds which make the enactment of such a technical regulation necessary, where these are not already made clear in the draft."
3 The provisions of Article 9(1) and (2) are as follows:
"1. Without prejudice to paragraph 2, Member States shall postpone the adoption of a draft technical regulation for six months from the date of the notification referred to in Article 8(1) if the Commission or another Member State delivers a detailed opinion, within three months of that date, to the effect that the measure envisaged must be amended in order to eliminate or reduce any barriers which it might create to the free movement of goods.
2. The period in paragraph 1 shall be twelve months if, within three months following the notification referred to in Article 8(1), the Commission gives notice of its intention of proposing or adopting a directive on the subject."
4 On learning that the Netherlands authorities had adopted on 9 October 1990 Amendment XIII to the PVS regulation on quality standards for flower bulbs (iris, lily), the Commission decided to initiate proceedings under Article 169 of the Treaty. It considered that the said regulation was a technical regulation covered by Directive 83/189 and that the draft amendment should, therefore, have been notified to the Commission.
5 By letter of 31 July 1991 the Commission gave the Netherlands Government formal notice to submit its observations on that subject, claiming that there was an obvious case of non-compliance with the obligations imposed on the Member States by the said directive, requiring the immediate suspension of the measure. In the same letter, the Commission also pointed out that as a result of the breach of the directive the technical regulation at issue was unenforceable against third parties.
6 By letter of 4 November 1991, the Netherlands authorities acknowledged that the regulation in question was a technical regulation for the purposes of Directive 83/189 and that they had failed to notify the Commission of the draft amendment.
7 Finding that Directive 83/189 had still not been applied, the Commission sent a reasoned opinion to the Netherlands Government by letter of 18 May 1992, again requesting it to give notification of draft amendment XIII within two months and to suspend its adoption for the periods provided for in the directive. In that reasoned opinion the Commission also made it clear that the technical regulation concerned could not be enforced against third parties.
8 In a letter dated 23 July 1992, the Netherlands Government informed the Commission that it would in future endeavour to avoid such omissions and that it had in the meantime given notification of another amendment to the same regulation.
9 The Commission commenced this action by application of 26 January 1993.
10 It is not disputed that in accordance with Article 8 of the directive draft amendment XIII to the PVS regulation ought to have been notified forthwith to the Commission and that such notification was not given.
11 Furthermore, the Netherlands Government has from the start of the administrative stage of this procedure acknowledged the failure to fulfil its obligations.
12 In those circumstances, it must be held that, by adopting on 9 October 1990 Amendment XIII to the PVS regulation on quality standards for flower bulbs (iris, lily) without notifying it to the Commission at the drafting stage, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 8 of Directive 83/189.

Costs
13 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Kingdom of the Netherlands has been unsuccessful, it must be ordered to pay the costs.

On those grounds,
THE COURT (Sixth Chamber)
hereby:
1. Declares that, by adopting on 9 October 1990 Amendment XIII to the PVS regulation on quality standards for flower bulbs (iris, lily) without notifying it to the Commission at the drafting stage, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 8 of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations;
2. Orders the Kingdom of the Netherlands to pay the costs.