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

JUDGMENT OF THE COURT (Second Chamber)

17 January 2002 (1)

(Failure of a Member State to fulfil its obligations - Directive 96/82/EC - Failure to transpose within the prescribed period)

In Case C-394/00,

Commission of the European Communities, represented by G. zur Hausen, acting as Agent, with an address for service in Luxembourg,

applicant,

v

Ireland, represented by D. O'Hagan, acting as Agent, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (OJ 1997 L 10, p. 13) or, in any event, by failing to notify the Commission of those provisions, Ireland has failed to fulfil its obligations under that directive,

THE COURT (Second Chamber),

composed of: N. Colneric, President of the Chamber, R. Schintgen (Rapporteur) and V. Skouris, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 11 October 2001,

gives the following

Judgment

1. By application lodged at the Registry of the Court on 25 October 2000, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (OJ 1997 L 10, p. 13) or, in any event, by failing to notify the Commission of those provisions, Ireland has failed to fulfil its obligations under that directive.

2. Under the first subparagraph of Article 24(1) of Directive 96/82, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the directive not later than 24 months after its entry into force and forthwith to inform the Commission thereof.

3. Pursuant to Article 25, Directive 96/82 entered into force on the 20th day following that of its publication in the Official Journal of the European Communities. As publication took place on 14 January 1997, the directive entered into force on 3 February 1997 and the period laid down in the first subparagraph of Article 24(1) of the directive expired on 3 February 1999.

4. Since, upon the expiry of that period, the Commission had not been informed of the provisions adopted by Ireland in order to comply with Directive 96/82 and did not have any other information from which to conclude that that Member State had adopted the provisions necessary for that purpose, it concluded that Ireland had failed to fulfil its obligations under the directive and, by letter of 10 May 1999, gave the Irish Government formal notice to submit its observations within two months.

5. By letter of 19 October 1999 the Irish authorities informed the Commission that legislation to transpose Directive 96/82 by the end of 1999 was being drafted.

6. In those circumstances, the Commission addressed a reasoned opinion to Ireland on 27 October 1999, requesting it to adopt the measures necessary to comply with its obligations under Directive 96/82 within two months of notification of the opinion.

7. By letter of 6 January 2000 the Irish authorities informed the Commission that draft regulations transposing Directive 96/82 would very shortly be sent to it. By letter of 14 July 2000 they forwarded to the Commission draft regulations entitled European Communities (Control of Major Accident Hazards Involving Dangerous Substances) Regulations, 2000, stating that the regulations would be notified to the Commission as soon as they had been adopted.

8. Finding that the Irish Government had not communicated to it the measures necessary to transpose Directive 96/82, the Commission brought the present action.

9. Ireland does not deny that the measures necessary to transpose Directive 96/82 into national law were not adopted within the period prescribed. It argues, however, that, with the enactment on 28 August 2000 of the law entitled The Planning and Development Act, 2000, supplemented by an order made by the Minister for the Environment and Local Government of 31 October 2000, and the adoption on 21 December 2000 of the European Communities (Control of Major Accident Hazards Involving Dangerous Substances) Regulations, 2000, that transposition is now complete.

10. Ireland also points out that the Minister for the Environment and Local Government had as early as July 1999 published a circular addressed to the competent authorities, advising them to operate as though Directive 96/82 had already been transposed.

11. It must in this connection be borne in mind that, according to settled case-law, mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of a Member State's obligations under the Treaty (see, in particular, Case C-315/98 Commission v Italy [1999] ECR I-8001, paragraph 10, and Case C-254/00 Commission v Netherlands [2001] ECR I-7567, paragraph 7).

12. Moreover, the Court has repeatedly held that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, inter alia, Case C-435/99 Commission v Portugal [2000] ECR I-11179, paragraph 16, and Case C-111/00 Commission v Austria [2001] ECR I-7555, paragraph 13).

13. In the present case it is not disputed that, at the end of the period of two months fixed in the reasoned opinion, Directive 96/82 had not in fact been transposed into Irish law and, that being so, the action brought by the Commission must be considered to be well founded.

14. In consequence, it must be declared that, by failing to adopt within the period prescribed the laws, regulations and administrative provisions necessary to comply with Directive 96/82, Ireland has failed to fulfil its obligations under that directive.

    Costs

15. 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 to be awarded against Ireland and the latter has been unsuccessful, Ireland must be ordered to pay the costs.

On those grounds,

THE COURT (Second Chamber)

hereby:

1. Declares that, by failing to adopt within the period prescribed the laws, regulations and administrative provisions necessary to comply with Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, Ireland has failed to fulfil its obligations under that directive;

2. Orders Ireland to pay the costs.

Colneric Schintgen Skouris

Delivered in open court in Luxembourg on 17 January 2002.

R. Grass N. Colneric

Registrar President of the Second Chamber

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1: Language of the case: English.