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

JUDGMENT OF THE COURT (Sixth Chamber)
18 November 2004 (1)

applicant,

v

defendant,

THE COURT (Sixth Chamber),

having regard to the written procedure,

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

gives the following

Judgment

1. By its application, the Commission of the European Communities requests the Court to declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC on the development of the Community-™s railways (OJ 2001 L 75, p. 1), Directive 2001/13/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 95/18/EC on the licensing of railway undertakings (OJ 2001 L 75, p. 26) and Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29) or, in any event, by failing to notify those provisions to it, Ireland has failed to fulfil its obligations under those directives.
2. Under Article 2 of Directives 2001/12 and 2001/13 and the first paragraph of Article 38 of Directive 2001/14, Member States are required to bring into force the laws, regulations and administrative provisions necessary to comply with those three directives by 15 March 2003 at the latest and to inform the Commission forthwith.
3. Ireland did not inform the Commission of the measures taken to transpose Directives 2001/12, 2001/13 and 2001/14 into its domestic legal system within the period prescribed. Since the Commission was not in possession of any other information from which it could conclude that the necessary provisions had been adopted, it initiated the infringement procedure provided for in Article 226 EC.
4. By letter of 3 April 2003, the Commission gave the Irish Government formal notice calling on it to submit its observations within a period of two months from notification of that letter. No official reply to that letter was received.
5. On 9 July 2003, the Commission delivered a reasoned opinion calling on Ireland to take the measures necessary to comply with that opinion within a period of two months from the date of notification. The Irish Government did not reply within the prescribed period.
6. The Commission did not subsequently receive any information from Ireland, and since it had no information from which it could conclude that the measures necessary for the transposition of the directives concerned had been finally taken, it brought the present action.
7. The Commission claims that, by failing to adopt the measures necessary to comply with Directives 2001/12, 2001/13 and 2001/14, or, in any event, by failing to notify those measures to it, Ireland has failed to fulfil its obligations under the relevant provisions of those directives.
8. In defence, the Irish Government contends that it transposed Directives 2001/12 and 2001/13 into national law by regulations of which copies were annexed to its defence lodged on 22 March 2004. It states that Directive 2001/14 is in the process of transposition; the draft regulations which were delayed due to a heavy legislative programme have been prepared and require only the signature of the minister concerned. In those circumstances the Irish Government asks the Court to suspend the procedure for a period of three months.
9. In its reply, the Commission acknowledges that Ireland has adopted the measures necessary to transpose Directives 2001/12 and 2001/13. The Commission wishes, however, to maintain its complaint as regards Directive 2001/14.
10. It should be noted that Ireland does not dispute that, on expiry of the period prescribed in the reasoned opinion, all the measures necessary to transpose Directive 2001/14 had still not been taken.
11. 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-143/02 Commission v Italy [2003] ECR I-2877, paragraph 11, Case C-446/01 Commission v Spain [2003] ECR I-6053, paragraph 15, and the judgment of 27 May 2004 in Case C-398/02 Commission v Spain (not published in the European Court Reports), paragraph 17). Subsequent changes cannot be taken into account by the Court (see, inter alia, the judgment of 1 April 2004 in Case C-375/03 Commission v Luxembourg, not yet published in the European Court Reports).
12. As regards the Irish Government-™s arguments relating to a heavy legislative programme, it has consistently been held that practical difficulties which emerge when it comes to implementing a Community measure cannot constitute a ground for a Member State to exonerate itself from fulfilling its obligations (see, inter alia, the judgment of 9 March 2004 in Case C-314/03 Commission v Luxembourg, not yet published in the European Court Reports, paragraph 5, and the judgment of 30 September 2004 in Case C-481/03 Commission v Luxembourg (not published in the European Court Reports), paragraph 10).
13. The grounds pleaded by the Irish Government to justify its failure to transpose Directive 2001/14 must therefore be rejected.
14. In those circumstances, the Commission-™s action must be regarded as well founded in so far as it concerns the failure to transpose Directive 2001/14.
15. It must therefore be found that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/14, Ireland has failed to fulfil its obligations under that directive.

Costs
16. 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. Article 69(5) provides that a party who discontinues or withdraws from proceedings is to be ordered to pay the costs, unless the discontinuance or withdrawal is justified by the conduct of the other party.
17. The Commission abandoned some of the complaints set out in its application in so far as Ireland adopted, subsequent to the commencement of the action, the measures necessary to transpose Directives 2001/12 and 2001/13. It follows that the Commission-™s partial withdrawal is justified by the conduct of Ireland which has, in addition, been unsuccessful as to the remainder. Ireland must therefore be ordered to pay the costs.




On those grounds, the Court (Sixth Chamber) hereby:
1. Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification, Ireland has failed to fulfil its obligations under that directive;
2. Orders Ireland to pay the costs.

Signatures.

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1 - Language of the case: English.