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

JUDGMENT OF THE COURT (Second Chamber)

13 March 2003 (1)

(Failure by a Member State to fulfil its obligations - Directive 98/81/EC - Failure to transpose within the prescribed period)

In Case C-333/01,

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

applicant,

v

Kingdom of Spain, represented by N. Díaz Abad, acting as Agent, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by failing to adopt, or to notify to the Commission, the laws, regulations and administrative provisions necessary to comply with 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 Kingdom of Spain has failed to fulfil its obligations under that directive,

THE COURT (Second Chamber),

composed of: R. Schintgen, President of the Chamber, V. Skouris and N. Colneric (Rapporteur), 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 January 2003,

gives the following

Judgment

1. By application lodged at the Court Registry on 6 September 2001, the Commission of the European Commuities brought an action under Article 226 EC for a declaration that, by failing to adopt, or to notify to the Commission, the laws, regulations and administrative provisions necessary to comply with 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, hereinafter 'the Directive'), the Kingdom of Spain has failed to fulfil its obligations thereunder.

2. Under Article 2(1) of the Directive, Member States were 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 thereof. The Directive entered into force on 5 December 1998.

3. Under Article 2(2) of the Directive, Member States were to communicate to the Commission the text of the main provisions of national law which they adopted in the field governed by the Directive.

4. Taking the view that the Directive had not been transposed into Spanish law within the period prescribed, the Commission initiated the infringement procedure. On 17 January 2001, having given the Kingdom of Spain formal notice to submit its observations, the Commission issued a reasoned opinion calling on that Member State to take the measures necessary to comply with the reasoned opinion within two months of its notification.

5. The Spanish authorities replied, on 4 April 2001, that an initial text of a preliminary draft law would be finalised at the end of the month of April 2001.

6. Having received no further communication from the Kingdom of Spain regarding the progress of that preliminary draft law, the Commission decided to bring the present action.

7. Although the Spanish Government seeks the dismissal of the action, it does not dispute that it has not transposed the Directive within the period laid down.

8. 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 prevailing in the Member State 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).

9. In the present case, the Directive was not transposed within the period laid down by the reasoned opinion. Accordingly, the Commission's action must be considered well founded.

10. It must therefore be held that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with the Directive, the Kingdom of Spain has failed to fulfil its obligations thereunder.

    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 Kingdom of Spain has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds,

THE COURT (Second Chamber)

hereby:

1. Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 98/81/EC of 26 October 1998 amending Directive 90/219/EEC on the contained use of genetically modified micro-organisms, the Kingdom of Spain has failed to fulfil its obligations under that directive;

2. Orders the Kingdom of Spain to pay the costs.

SchintgenSkouris Colneric

Delivered in open court in Luxembourg on 13 March 2003.

R. Grass R. Schintgen

Registrar President of the Second Chamber

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1: Language of the case: Spanish.