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

JUDGMENT OF THE COURT (Fifth Chamber)

11 December 1997 (1)

(Failure to fulfil obligations - Failure to transpose Directive 92/43/EEC)

In Case C-83/97,

Commission of the European Communities, represented by Götz zur Hausen, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Federal Republic of Germany, represented by Ernst Röder, Ministerialrat in the Federal Ministry of Economic Affairs, and Bernd Kloke, Oberregierungsrat in the same ministry, acting as Agents, D-53107 Bonn,

defendant,

APPLICATION for a declaration that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), the Federal Republic of Germany has failed to fulfil its obligations under the EC Treaty,

THE COURT (Fifth Chamber),

composed of: C. Gulmann (Rapporteur), President of the Chamber, M. Wathelet, J.C. Moitinho de Almeida, J.-P. Puissochet and L. Sevón, Judges,

Advocate General: N. Fennelly,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 23 October 1997,

gives the following

Judgment

1. By application lodged at the Registry of the Court of Justice on 24 February 1997, the Commission of the European Communities brought an action under Article 169 of the EC Treaty for a declaration that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7, 'the directive'), the Federal Republic of Germany has failed to fulfil its obligations under the EC Treaty.

2. In accordance with Article 23 of the directive, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with it within two years of its notification, and forthwith to inform the Commission thereof. Since the directive was notified to the Federal Republic of Germany on 5 June 1992, the period allowed for its implementation expired on 5 June 1994.

3. On 9 August 1994, not having been notified or otherwise informed of any measures to transpose the directive into German law, the Commission gave the Federal Government formal notice under Article 169 of the Treaty to submit its observations in that regard within two months.

4. By letter of 25 October 1994 the Federal Government replied that the German authorities were drafting the provisions necessary to comply with the directive and that, pending their adoption, the directive was to be applied under the legal rules in force. However, the Federal Government asserted that the provisions of the directive concerning the conservation of natural habitats were not yet relevant for areas of Community interest, that the provisions relating to protection of species

   had already been to a large extent transposed by the federal law on the protection of nature then in force and, generally, that in certain places the directive was unclear, which complicated its transposition.

5. On 28 November 1995, not having received any communication of the promised transposition measures, the Commission sent the Federal Government a reasoned opinion requesting it to take the necessary measures to comply therewith within two months from its notification. That reasoned opinion went unanswered.

6. Accordingly, the Commission decided to bring the present action.

7. The Federal Government does not deny that it has not adopted all the measures necessary for implementation of the directive. It states, however, that since the passing of the deadline for transposition, the directive has been directly applied by the competent authorities and existing national provisions have been interpreted in accordance with Community law. It goes on to say that a law designed inter alia to implement the directive is in the process of being adopted.

8. Since the directive has not been transposed into national law by the Federal Republic of Germany within the prescribed period, the action brought by the Commission must be held to be well founded.

9. It has consistently been held that mere administrative practices, which by their nature are alterable at will by the administration and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of a Member State's obligations under Article 189 of the EC Treaty (see, inter alia, Case C-242/94 Commission v Spain [1995] ECR I-3031, paragraph 6).

10. It must therefore be held that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with the directive, the Federal Republic of Germany has failed to fulfil its obligations under Article 23 of the directive.

    Costs

11. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the defendant has been unsuccessful, the Federal Republic of Germany must be ordered to pay the costs.

On those grounds,

THE COURT (Fifth Chamber)

hereby:

1. Declares that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, the Federal Republic of Germany has failed to fulfil its obligations under Article 23 of that directive;

2. Orders the Federal Republic of Germany to pay the costs.

GulmannWathelet Moitinho de Almeida PuissochetSevón

Delivered in open court in Luxembourg on 11 December 1997.

R. Grass C. Gulmann

Registrar President of the Fifth Chamber

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1: Language of the case: German.