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

JUDGMENT OF THE COURT (Fifth Chamber)

12 March 1998 (1)

(Failure to fulfil obligations - Failure to transpose Directives 93/62/EEC, 93/63/EEC, 93/64/EEC, 93/78/EEC, 93/79/EEC and 94/3/EC)

In Case C-344/96,

Commission of the European Communities, represented by Klaus-Dieter Borchardt, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, also 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, D-53107 Bonn, acting as Agent,

defendant,

APPLICATION for a declaration that, by failing to adopt within the periods prescribed the laws, regulations and administrative provisions needed to comply with,

- Commission Directive 93/62/EEC of 5 July 1993 setting out the implementing measures concerning the supervision and monitoring of suppliers and establishments pursuant to Council Directive 92/33/EEC on the marketing of vegetable propagating and planting material, other than seed (OJ 1993 L 250, p. 29),

- Commission Directive 93/63/EEC of 5 July 1993 setting out the implementing measures concerning the supervision and monitoring of suppliers and establishments pursuant to Council Directive 91/682/EEC on the marketing of ornamental plant propagating material and ornamental plants (OJ 1993 L 250, p. 31),

- Commission Directive 93/64/EEC of 5 July 1993 setting out the implementing measures concerning the supervision and monitoring of suppliers and establishments pursuant to Council Directive 92/34/EEC on the marketing of fruit plant propagating material and fruit plants intended for fruit production (OJ 1993 L 250, p. 33),

- Commission Directive 93/78/EEC of 21 September 1993 setting out additional implementing provisions for lists of varieties of ornamental plant propagating material and ornamental plants, as kept by suppliers under Council Directive 91/682/EEC (OJ 1993 L 256, p. 19),

- Commission Directive 93/79/EEC of 21 September 1993 setting out additional implementing provisions for lists of varieties of fruit plant propagating material and fruit plants, as kept by suppliers under Council Directive 92/34/EEC (OJ 1993 L 256, p. 25), and

- Commission Directive 94/3/EC of 21 January 1994 establishing a procedure for the notification of interception of a consignment or a harmful organism from third countries and presenting an imminent phytosanitary danger (OJ 1994 L 32, p. 37),

the Federal Republic of Germany has failed to fulfil its obligations under the EC Treaty,

THE COURT (Fifth Chamber),

composed of: C. Gulmann, President of the Chamber, D.A.O. Edward, J.-P. Puissochet, P. Jann (Rapporteur) and L. Sevón, Judges,

Advocate General: P. Léger,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 16 December 1997,

gives the following

Judgment

1. By application lodged at the Court Registry on 17 October 1996, 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 periods prescribed the laws, regulations and administrative provisions needed to comply with:

   - Commission Directive 93/62/EEC of 5 July 1993 setting out the implementing measures concerning the supervision and monitoring of suppliers and establishments pursuant to Council Directive 92/33/EEC on the marketing of vegetable propagating and planting material, other than seed (OJ 1993 L 250, p. 29),

   - Commission Directive 93/63/EEC of 5 July 1993 setting out the implementing measures concerning the supervision and monitoring of suppliers and establishments pursuant to Council Directive 91/682/EEC on the marketing of ornamental plant propagating material and ornamental plants (OJ 1993 L 250, p. 31),

   - Commission Directive 93/64/EEC of 5 July 1993 setting out the implementing measures concerning the supervision and monitoring of suppliers and establishments pursuant to Council Directive 92/34/EEC on the marketing of fruit plant propagating material and fruit plants intended for fruit production (OJ 1993 L 250, p. 33),

   - Commission Directive 93/78/EEC of 21 September 1993 setting out additional implementing provisions for lists of varieties of ornamental plant propagating material and ornamental plants, as kept by suppliers under Council Directive 91/682/EEC (OJ 1993 L 256, p. 19),

   - Commission Directive 93/79/EEC of 21 September 1993 setting out additional implementing provisions for lists of varieties of fruit plant propagating material and fruit plants, as kept by suppliers under Council Directive 92/34/EEC (OJ 1993 L 256, p. 25), and

   - Commission Directive 94/3/EC of 21 January 1994 establishing a procedure for the notification of interception of a consignment or a harmful organism from third countries and presenting an imminent phytosanitary danger (OJ 1994 L 32, p. 37),

   the Federal Republic of Germany has failed to fulfil its obligations under the EC Treaty.

2. Under Article 6(1) of Directives 93/62, 93/63 and 93/64 and Article 3(1) of Directives 93/78 and 93/79, Member States had to bring into force the laws, regulations or administrative provisions needed to comply with those directives not later than 30 June 1994. Under Article 7(1) of Directive 94/3, Member States had to bring into force the laws, regulations or administrative provisions needed to comply with that directive three months after its publication in the Official Journal of the European Communities. As Directive 94/3 was published in the Official Journal of 5 February 1994, the period prescribed for compliance by the Member States expired on 5 May 1994.

3. Having received no notification concerning the transposition of the directive in question into German law, the Commission sent a letter of formal notice pursuant to Article 169 of the Treaty to that Member State on 9 August 1994, to which the German authorities replied, on 6 October 1994, that the procedure for transposing the directives was under way.

4. In the absence of any subsequent notification on the subject, the Commission sent to the Federal Republic of Germany, on 25 September 1995, a reasoned opinion in which it called on it to adopt the measures necessary to comply with the opinion within two months.

5. On 24 May 1996 the German Government sent the Commission a copy of a report dated 12 April 1996, intended for the Bundestag committee responsible for European Union affairs, concerning the progress of the transposition of the Community directives. The report showed that measures to transpose the directives mentioned in the reasoned opinion into domestic law had not been taken. It stated that the procedure for transposing Directive 94/3 was under way, while that for Directives 93/62, 93/63, 93/64, 93/78 and 93/79 was encountering difficulties over the interpretation of the provisions concerning the scope of those directives.

6. Not having received any further information from the German Government from which it could be concluded that the Federal Republic of Germany had, in the meantime, complied with its obligations under the directives, the Commission brought the present proceedings.

7. Whilst acknowledging that it did neglect to inform the Commission, the German Government points out that Directive 94/3 was transposed by a decree of the Federal Ministry for Food, Agriculture and Forestry of 19 January 1995, and

   provides information to enable the Commission to verify the details of that transposition. The German Government does not dispute that Directives 93/62, 93/63, 93/64, 93/78 and 93/79 have not been transposed. It states that the procedure for transposing them into domestic law, which it is endeavouring to expedite, is encountering difficulties over the interpretation of those directives, which it explained in a memorandum sent to the Commission on 10 October 1994. It adds that those difficulties were recognised in the course of work on the simplification of the legislation on the internal market, which was the subject of a report, adopted by the Commission in November 1996, which should result in a review of the directives in question.

8. On 11 February 1997, pursuant to Article 78 of the Rules of Procedure of the Court of Justice, the Commission informed the Court that it wished to discontinue the proceedings with respect to Directive 94/3 and, pursuant to Article 69(5) of those Rules, it applied for an order for costs against the Federal Republic of Germany. It continued with the proceedings with respect to the other directives.

9. The Federal Republic of Germany does not dispute that Directives 93/62, 93/63, 93/64, 93/78 and 93/79 have not been transposed within the prescribed period. As for the difficulties over interpretation which the German Government raises in that connection, suffice it to note that the Commission was notified of them by memorandum of 10 October 1994 and they were only raised after expiry of the period prescribed for the transposition of the directives in question. Moreover, the existence of measures to review those directives, which is, after all, common in the context of an ongoing legislative process, cannot relieve Member States of the obligations which the legislation in force imposes on them.

10. It must therefore be held that, by failing to take within the prescribed period the measures needed to comply with Directives 93/62, 93/63, 93/64, 93/78 and 93/79, the Federal Republic of Germany has failed to comply with its obligations under those directives.

11. As the Commission has informed the Court that it has discontinued the proceedings in so far as Directive 94/3 is concerned, there is no need to adjudicate on the failure to transpose that directive within the period prescribed therein.

    Costs

12. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Federal Republic of Germany has been unsuccessful, it must be ordered to pay the costs of the proceedings in so far as they relate to Directives 93/62, 93/63, 93/64, 93/78 and 93/79.

13. Pursuant to the first paragraph of Article 69(5) of the Rules of Procedure, upon application by a party who discontinues the proceedings, the costs are to be borne by the other party if this appears justified by the conduct of that party. Having regard to the conduct of the Federal Republic of Germany, which only belatedly notified the Commission of the national measures transposing Directive 94/3, it should be ordered to pay the costs of the proceedings in so far as they relate to that directive.

On those grounds,

THE COURT (Fifth Chamber),

hereby:

1. Declares that, by failing to adopt within the periods prescribed the laws, regulations and administrative provisions needed to comply with,

- Commission Directive 93/62/EEC of 5 July 1993 setting out the implementing measures concerning the supervision and monitoring of suppliers and establishments pursuant to Council Directive 92/33/EEC on the marketing of vegetable propagating and planting material, other than seed,

- Commission Directive 93/63/EEC of 5 July 1993 setting out the implementing measures concerning the supervision and monitoring of suppliers and establishments pursuant to Council Directive 91/682/EEC on the marketing of ornamental plant propagating material and ornamental plants,

- Commission Directive 93/64/EEC of 5 July 1993 setting out the implementing measures concerning the supervision and monitoring of suppliers and establishments pursuant to Council Directive 92/34/EEC on the marketing of fruit plant propagating material and fruit plants intended for fruit production,

- Commission Directive 93/78/EEC of 21 September 1993 setting out additional implementing provisions for lists of varieties of ornamental plant propagating material and ornamental plants, as kept by suppliers under Council Directive 91/682/EEC, and

- Commission Directive 93/79/EEC of 21 September 1993 setting out additional implementing provisions for lists of varieties of fruit plant propagating material and fruit plants, as kept by suppliers under Council Directive 92/34/EEC,

the Federal Republic of Germany has failed to fulfil its obligations under the EC Treaty;

2. Declares that there is no need to adjudicate on the application in so far as it relates to Commission Directive 94/3/EC, of 21 January 1994, establishing a procedure for the notification of interception of a consignment or a harmful organism from third countries and presenting an imminent phytosanitary danger;

3. Orders the Federal Republic of Germany to pay the costs, including those consequent upon the partial discontinuance of the proceedings by the Commission.

GulmannEdward Puissochet JannSevón

Delivered in open court in Luxembourg on 12 March 1998.

R. Grass C. Gulmann

Registrar President of the Fifth Chamber

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1: Language of the case: German.