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

JUDGMENT OF THE COURT (Second Chamber)

16 October 2003 (1)

(Failure of a Member State to fulfil obligations - Failure to transpose Directive 98/81/EC)

In Case C-325/02,

Commission of the European Communities, represented by U. Wölker and F. Simonetti, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Grand Duchy of Luxembourg, represented by P. Gramegna, acting as Agent,

defendant,

APPLICATION for a declaration that, by transposing only part of Article 1 of and Annexes IV and V to Council Directive 98/81/EC of 26 October 1998 amending Directive 90/219/EEC on the contained use of genetically modified micro-organisms (OJ 1998 L 330, p. 13), the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 2 of that directive,

THE COURT (Second Chamber),

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

Advocate General: F.G. Jacobs,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1. By application lodged at the Court Registry on 16 September 2002, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by transposing only part of Article 1 of and Annexes IV and V to Council Directive 98/81/EC of 26 October 1998 amending Directive 90/219/EEC on the contained use of genetically modified micro-organisms (OJ 1998 L 330, p. 13), the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 2 of that directive.

   Legal framework

2. Council Directive 90/219/EEC of 23 April 1990 on the contained use of genetically modified micro-organisms (OJ 1990 L 117, p. 1) was amended by Directive 98/81.

3. Article 1 of Directive 98/81 completely rephrases Articles 2 to 16 and 18 to 20 of Directive 90/219, inserts a new article 20a into the Directive and, by its sole Annex, replaces the Annexes to that Directive by new Annexes I to V.

4. Annex III to Directive 90/219, in the version in Directive 98/81, sets out the principles to be followed in assessing the contained uses referred to in Article 5(2) of the Directive. Annex IV to Directive 90/219, in the version in Directive 98/81, lists containment and other protective measures which must be taken to implement Article 6(1) of the Directive. Annex V to Directive 90/219, in the version in Directive 98/81, specifies the information which the user is required to submit to the competent authorities in accordance with Articles 7, 9 and 10 of the Directive.

5. Under Article 2(1) of Directive 98/81, Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive not later than 18 months after the date of its entry into force and forthwith to inform the Commission. The Directive entered into force on 5 December 1998.

6. Under Article 2(2) of Directive 98/81, Member States are to communicate to the Commission the text of the main provisions of national law which they adopt in the field governed by the Directive.

   Pre-litigation procedure

7. Since the Luxembourg Government failed to inform the Commission of the provisions adopted for the purpose of transposing Directive 98/81 into national law and in the absence of any other information which would suggest that the Member State had adopted the necessary provisions, the Commission, on 8 August 2000, put the Luxembourg Government on formal notice to submit its observations on the matter within two months. On 24 January 2001, it issued a reasoned opinion to that government in which it noted the failure to communicate any transposition measures.

8. However, the Luxembourg Government had replied, by letter of 27 December 2000, stating that Annex III to the Grand Ducal regulation of 6 December 1999 (Mémorial A 1999, p. 2590) replicated the text of Annex IV to Directive 98/81.

9. It repeated that claim in its reply of 17 April 2001 to the reasoned opinion, stating in addition that it intended to transpose other provisions of Directive 98/81 by means of two Grand Ducal regulations which were still at draft stage, since transposition would also require action by the legislature.

10. By supplementary letter of formal notice of 25 July 2001, the Commission complained that the Grand Duchy of Luxembourg had failed to fulfil its obligations under Article 2 of Directive 98/81 by only transposing Annex IV to the Directive and, in any event, by failing to communicate to the Commission other transposition measures for that Directive, and invited the Luxembourg Government to submit its observations on that matter within two months.

11. In a first reply, of 27 September 2001, the Luxembourg Government relied on the existence of two draft Grand Ducal regulations and a draft law intended to complete the transposition of Directive 98/81.

12. Subsequently, in a second reply, of 8 November 2001, the Luxembourg Government communicated to the Commission a Grand Ducal regulation of 5 October 2001 establishing the information which must be included in applications for the approval of proposals for the contained use of genetically modified organisms (Mémorial A 2001, p. 2591).

13. Since it took the view that the Grand Duchy of Luxembourg had still not adopted, within the prescribed period, all the measures necessary to comply with the obligations laid down in Directive 98/81, inasmuch as, inter alia, the Grand Ducal regulation of 5 October 2001 only transposed Article 1 of Directive 98/81 in so far as it amended Articles 7, 9(1) and 10(1) of Directive 90/219 and Annex V to Directive 98/81, the Commission sent the Luxembourg Government a supplementary reasoned opinion by letter of 21 December 2001. The Commission invited the Luxembourg Government to take the necessary measures within two months of receiving the supplementary reasoned opinion.

    The application

    Arguments of the parties

14. The Commission claims that although the prescribed periods had expired, the Grand Duchy of Luxembourg had carried out only a partial transposition of Directive 98/81, limited to one part of Article 1 and to Annexes IV and V.

15. The Luxembourg Government states that the Luxembourg Conseil d'État gave its opinion on 8 October 2002 on the draft law which will complete the transposition into Luxembourg law of Directive 98/81. After publication of the Conseil d'État's opinion, that draft law was sent to the Chamber of Deputies, which was asked to treat it as a priority. The competent committees in the Chamber of Deputies had begun consideration of the draft law and the vote should, accordingly, take place in the near future and, in any event, during the first quarter of 2003.

    Findings of the Court

16. First of all, it must be pointed out that the application, in so far as it refers to Annexes IV and V to Directive 98/81, and the defence of the Luxembourg Government in that regard must be understood to refer to the Annexes to Directive 90/219 in the versions contained in the single annex to Directive 98/81.

17. It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in that Member State as it stood at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-71/99 Commission v Germany [2001] ECR I-5811, paragraph 29, and Case C-110/00 Commission v Austria [2001] ECR I-7545, paragraph 13).

18. In the present case, full transposition of the Directive did not take place within the period laid down in the reasoned opinion. The action brought by the Commission must therefore be considered to be well founded.

19. Accordingly, it must be held that, by transposing only part of Article 1 of Directive 98/81 and Annexes IV and V to Directive 90/219 in the version in Directive 98/81, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 2 of Directive 98/81.

    Costs

20. 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 Grand Duchy of Luxembourg has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds,

THE COURT (Second Chamber)

hereby:

1. Declares that by transposing only part of Article 1 of Directive 98/81/EC of 26 October 1998 amending Directive 90/219/EEC on the contained use of genetically modified micro-organisms and Annexes IV and V to Council Directive 90/219/EEC of 23 April 1990 on the contained use of genetically modified micro-organisms in the version in Directive 98/81, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 2 of Directive 98/81;

2. Orders the Grand Duchy of Luxembourg to pay the costs.

SchintgenSkouris Colneric

Delivered in open court in Luxembourg on 16 October 2003.

R. Grass V. Skouris

Registrar President

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1: Language of the case: French.