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URL: http://www.bailii.org/eu/cases/EUECJ/2004/C40603.html
Cite as: [2004] EUECJ C-406/3, [2004] EUECJ C-406/03

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JUDGMENT OF THE COURT (Fifth Chamber)
26 October 2004 (1)

(Failure of a Member State to fulfil obligations - Regulation (EC) No 2037/2000 - Substances that deplete the ozone layer - Incomplete implementation)

In Case C-406/03,

ACTION under Article 226 EC for failure to fulfil obligations,

brought on 29 September 2003,

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

applicant,

v

Ireland, represented by F. O'Dubhghaill and D. O'Hagan, acting as Agents, assisted by D. McGrath, barrister, with an address for service in Luxembourg,

defendant,

THE COURT (Fifth Chamber),

composed of R. Silva de Lapuerta, President of the Chamber (Rapporteur), C. Gulmann and J. Makarczyk, Judges,

Advocate General: A. Tizzano,
Registrar: R. Grass,

having regard to the written procedure,

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

gives the following

Judgment

By its application, the Commission of the European Communities requests the Court to declare that, by failing to provide the reports referred to in Article 16(5) and (6) and Article 17(1) of Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer (OJ 2000 L 244, p. 1; -�the Regulation-�), and by failing to take all precautionary measures practicable to prevent and minimise leakages of methyl bromide and to define the minimum qualification requirements for the personnel involved in accordance with Artic1e 17(2) of the Regulation, Ireland has failed to fulfil its obligations under Article 16(5) and (6) and Article 17(1) and (2) of the Regulation.

Relevant provisions and pre-litigation procedure

Article 16(5) and (6) of the Regulation provides:

As set out in Article 17(1) of the Regulation, -�all precautionary measures practicable shall be taken to prevent and minimise leakages of controlled substances. In particular, fixed equipment with a refrigerating fluid charge of more than 3 kg shall be checked for leakages annually. Member States shall define the minimum qualification requirements for the personnel involved. By 31 December 2001 at the latest, Member States shall report to the Commission on the programmes related to the above qualification requirements. ...-�

Article 17(2) of the Regulation provides that -�all precautionary measures practicable shall be taken to prevent and minimise leakages of methyl bromide from fumigation installations and operations in which methyl bromide is used. Whenever methyl bromide is used in soil fumigation, the use of virtually impermeable films for a sufficient time, or other techniques ensuring at least the same level of environmental protection shall be mandatory. Member States shall define the minimum qualification requirements for the personnel involved.-�

Since the Commission took the view that Ireland had failed to fulfil its obligations under the Regulation, it initiated against that Member State the infringement procedure under Article 226 EC by sending it a letter of formal notice on 12 July 2002. In that letter the Commission pointed out to the Irish Government that it had not fulfilled within the prescribed period the reporting requirements laid down in Article 16(5) and (6) and Article 17(1) of the Regulation or the obligations imposed in Article 17(2) thereof.

After receiving no official reply to its letter of formal notice, on 19 December 2002 the Commission sent to Ireland a reasoned opinion calling on it to take the necessary measures within two months from notification thereof. When Ireland failed to respond to the opinion, the Commission decided to bring the present action.

The action

Arguments of the parties

In support of its action, the Commission submits that as at 31 December 2001 it had not received from Ireland information on the quantities of ozone-depleting substances recovered, reclaimed, recycled and destroyed. Nor had it received by that date the other information required to be reported to it pursuant to Article 17(1) of the Regulation.

With regard to Article 17(2) of the Regulation, the Commission considers that Ireland has likewise failed to fulfil its obligations, since it has not defined the minimum qualification requirements for personnel involved in taking all precautionary measures practicable to prevent and minimise leakages of methyl bromide from fumigation installations and operations in which methyl bromide is used. Nor has the Commission been informed that Ireland has taken the necessary precautionary measures.

Ireland accepts that it did not fully comply with its obligations under Article 16(5) and (6) and Article 17(1) and (2) of the Regulation by 31 December 2001. It further accepts that it is incumbent upon it to do so.

Nevertheless, the Irish Government explains this delay by reference to the complexity of the obligations imposed by the Regulation, and points out certain steps already taken in order to comply as soon as possible with its obligations under Article 16(5) and (6) and Article 17(1) and (2) of the Regulation.

Findings of the Court

Ireland accepts that it did not fully comply by 31 December 2001 with its obligations under Article 16(5) and (6) and Article 17(1) and (2) of the Regulation.

Notwithstanding that acknowledgment, Ireland makes certain submissions regarding, first, the difficulties resulting from the breadth of the sectors encompassed, from the extensive and diffuse nature of uses of controlled substances and from identification and control of the wide range of sources and users and, second, the steps under way to remedy that situation.

It should be noted first of all that, in accordance with the Court-�s settled case-law, the complexity of Community legislation which a Member State has taken part in drafting cannot be considered an unusual and unforeseeable difficulty which the authorities in that State could not have overcome even by exercising all due care (Case 145/85 Denkavit v Belgium [1987] ECR 565, paragraph 13).

Also, the Court has repeatedly held that a State may not plead internal circumstances in order to justify a failure to comply with obligations and time-limits resulting from Community law (see Case C-209/88 Commission v Italy [1990] ECR I-4313, paragraph 11). In the present case, the difficulties encountered by Ireland cannot be invoked to justify its failure to fulfil its obligations.

Furthermore, so far as concerns the measures taken after the time-limit laid down by the reasoned opinion, it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be examined on the basis of 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 or of measures adopted by a Member State, in order to comply with its obligations, after the action for failure to fulfil obligations has been brought (Case 291/84 Commission v Netherlands [1987] ECR 3483, paragraph 15, and Case C-'200/88 Commission v Greece [1990] ECR I-4299, paragraph 13).

It must therefore be found that, by failing to provide the reports referred to in Article 16(5) and (6) and Article 17(1) of the Regulation, and by failing to take all precautionary measures practicable to prevent and minimise leakages of methyl bromide and to define the minimum qualification requirements for the personnel involved in accordance with Artic1e 17(2) of the Regulation, Ireland has failed to fulfil its obligations under the Regulation.

Costs

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 Ireland has been unsuccessful, the latter must be ordered to pay the costs.

1. Declares that, by failing to provide the reports referred to in Article 16(5) and (6) and Article 17(1) of Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer, and by failing to take all precautionary measures practicable to prevent and minimise leakages of methyl bromide and to define the minimum qualification requirements for the personnel involved in accordance with Artic1e 17(2) of the Regulation, Ireland has failed to fulfil its obligations under Article 16(5) and (6) and Article 17(1) and (2) of the Regulation;

2. Orders Ireland to pay the costs.

1 - Language of the case: English.

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