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

JUDGMENT OF THE COURT (Third Chamber)

27 November 2003 (1)

(Failure of a Member State to fulfil obligations - Failure to transpose Directive 1999/13/EC)

In Case C-332/02,

Commission of the European Communities, represented by X. Lewis, acting as Agent, with an address for service in Luxembourg,

applicant,

v

United Kingdom of Great Britain and Northern Ireland, represented initially by P. Ormond and subsequently by C. Jackson, acting as Agents, and M. Demetriou, barrister, 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 1999/13/EC of 11 March 1999 on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations (OJ 1999 L 85, p. 1) or, at least, by failing to inform the Commission of such measures, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 15 of that directive,

THE COURT (Third Chamber),

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

Advocate General: L.A. Geelhoed,

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 19 September 2002, 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 1999/13/EC of 11 March 1999 on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations (OJ 1999 L 85, p. 1) or, at least, by failing to inform the Commission of such measures, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 15 of that directive.

   Legal background

2. Article 15 of Directive 1999/13, as corrected (OJ 1999 L 188, p. 54), provides that Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with that directive not later than 1 April 2001 and that they were forthwith to inform the Commission thereof.

   Pre-litigation procedure

3. Having received no information concerning any measures adopted by the United Kingdom in order to comply with Directive 1999/13, the Commission initiated the procedure provided for in Article 226 EC. After sending the United Kingdom a letter of formal notice to submit its observations, the Commission, on 20 December 2001, issued a reasoned opinion in which it found that the directive had not been transposed in its entirety in Great Britain and Northern Ireland and that there was no information to show that it had been transposed in Gibraltar. The United Kingdom was requested to adopt the measures necessary to comply with that opinion within a period of two months from the date of its notification.

4. By letter of 16 April 2002, the United Kingdom Permanent Representation to the European Union communicated the formal directions adopted for the purpose of transposing Directive 1999/13 in England, Scotland, Wales and Northern Ireland. The United Kingdom authorities indicated that further measures were necessary in order to transpose that directive in its entirety and to regulate certain sectors of the industry which were not covered by the existing legisation and stated that transposition of the directive would be completed by the end of 2002 in relation to England and Wales. Scotland and Northern Ireland would follow a similar timetable for the work. As regards Gibraltar, a draft ordinance was being adopted.

5. Since it considered that the United Kingdom had not adopted, within the period prescribed by the reasoned opinion, the measures necessary to comply therewith, the Commission brought this action.

   The action

6. The Commission claims that it has not been informed of the adoption of the measures taken to comply with Directive 1999/13 in Great Britain, Northern Ireland and Gibraltar. Since it is in possession of no other information enabling it to conclude that the United Kingdom has adopted the necessary provisions, it assumes that the United Kingdom has not adopted them and has thus failed to fulfil its obligations under Directive 1999/13.

7. The United Kingdom states that, so far as Gibraltar is concerned, a Bill fully transposing Directive 1999/13 was adopted by the House of Assembly on 18 November 2002. It entered into force as law on 20 February 2003.

8. As regards England, Wales, Scotland and Northern Ireland, further legislation is needed in order fully to transpose Directive 1999/13. The regulations are to enter into force during 2003.

9. The United Kingdom does not dispute that, at the expiry of the period prescribed in the reasoned opinion, the measures necessary to transpose fully the directive had not yet been adopted, but sets out the progress in the work of transposition.

10. It is, in that regard, settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the 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, among others, Case C-63/02 Commission v United Kingdom [2003] ECR I-821, paragraph 11).

11. In the present case, it has been established that, when the period prescribed in the reasoned opinion expired, no measures transposing Directive 1999/13 into national law had been adopted.

12. Therefore, the Commission's action must be considered well founded.

13. It must accordingly be held that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 1999/13, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 15 thereof.

    Costs

14. 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 United Kingdom has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds,

THE COURT (Third Chamber)

hereby:

1. Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 1999/13/EC of 11 March 1999 on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 15 of that directive;

2. Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs.

RosasSchintgen Colneric

Delivered in open court in Luxembourg on 27 November 2003.

R. Grass A. Rosas

Registrar President of the Third Chamber

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1: Language of the case: English.