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

JUDGMENT OF THE COURT (First Chamber)

12 September 2002 (1)

(Failure by a Member State to fulfil its obligations - Directive 98/78/CE - Failure to transpose within the prescribed time-limit)

In Case C-312/01,

Commission of the European Communities, represented by C. Tufvesson and M. Patakia, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Hellenic Republic, represented by N. Dafniou, acting as Agent, with an address for service in Luxembourg,

defendants,

APPLICATION for a declaration that, by failing to adopt or to communicate to the Commission within the prescribed time-limit, all of the laws, regulations and administrative provisions necessary to comply with Directive 98/78/EC of the European Parliament and of the Council of 27 October 1998 on the supplementary supervision of insurance undertakings in an insurance group (OJ 1998 L 330, p. 1), the Hellenic Republic has failed to fulfil its obligations under that directive,

THE COURT (First Chamber),

composed of: P. Jann (Rapporteur), President of the Chamber, M. Wathelet and A. Rosas, Judges,

Advocate General: L.A. Geelhoed,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 6 June 2002,

gives the following

Judgment

By application lodged at the Court Registry on 7 August 2001, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by failing to adopt or to communicate to it within the prescribed time-limit, all the laws, regulations and administrative provisions to fully comply with Directive 98/78/CE of the European Parliament and of the Council of 27 October 1998 on the supplementary supervision of insurance undertakings in an insurance group (OJ 1998 L 330, p. 1, 'the Directive'), the Hellenic Republic has failed to fulfil its obligations under the EC Treaty.
2. That directive supplements the First Directive 73/239/EEC of the Council of 24 July 1973, on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (OJ 1976 L 228, p. 3) and the First Directive 79/267/EEC of the Council of 5 March 1979 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of direct life assurance (OJ 1979 L 63, p. 1).

3. Article 2(1) of the Directive provides:

   'In addition to the provisions of Directives 73/239/EEC and 79/267/EEC which lay down the rules for the supervision of insurance undertakings, Member States shall provide [that] supervision of any insurance undertaking which is a participating undertaking in at least one insurance undertaking, reinsurance undertaking, or non-member-country insurance undertaking shall be supplemented in the manner prescribed in Articles 5, 6, 8 and 9.'

4. Article 11(1) of the Directive states:

   'Member States shall adopt not later than 5 June 2000 the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately inform the Commission thereof.'

In accordance with the procedure under the first paragraph of Article 226 EC, and having given the Hellenic Republic formal notice to submit its observations, the Commission sent a reasoned opinion to that Member State by letter dated 29 December 2000, requesting it to adopt the measures necessary to comply with its obligations under the Directive within two months of the date of notification of that opinion.
6. As no other information relating to the transposition of the Directive was sent to the Commission within the time-limit set, it decided to bring the present action.

7. The Greek Government states that the measures necessary for the transposition of the Directive are underway. A draft presidential decree is under examination.

8. In that regard it must be recalled that according to settled case-law a Member State cannot rely on any provisions, practices or circumstances in its own legal order to justify failure to implement a directive within the prescribed period (see, in particular, Case C-276/98 Commission v Portugal [2001] ECR I-1699).

9. Since the Directive was not transposed within the time-limit prescribed in the reasoned opinion, the action brought by the Commission must be considered to be well founded.

10. It must therefore be held that, by failing to bring into force or to communicate to the Commission within the prescribed time-limit, all of the laws, regulations and administrative provisions necessary to comply with the Directive, the Hellenic Republic has failed to fulfil its obligations under that 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 Hellenic Republic has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds,

THE COURT (First Chamber)

hereby:

1. Declares that, by failing to bring into force or to communicate to the Commission within the prescribed time-limit, all of the laws, regulations and administrative provisions necessary to comply with Directive 98/78/EC of the European Parliament and of the Council of 27 October 1998 on the supplementary supervision of insurance undertakings in an insurance group, the Hellenic Republic has failed to fulfil its obligations under that directive;

2. Orders the Hellenic Republic to pay the costs.

JannWathelet Rosas

Delivered in open court in Luxembourg on 12 September 2002.

R. Grass P. Jann

Registrar President of the First Chamber

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1: Language of the case: Greek.