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

JUDGMENT OF THE COURT (Sixth Chamber)

20 October 2005 (*)

(Failure of a Member State to fulfil obligations - Directive 2001/19/EC - Mutual recognition of diplomas, certificates and other qualifications - Nurse, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor - Failure to transpose within the period prescribed - Gibraltar)

In Case C-505/04,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 8 December 2004,

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

applicant,

v

United Kingdom of Great Britain and Northern Ireland, represented by S. Nwaokolo, acting as Agent,

defendant,

THE COURT (Sixth Chamber),

composed of J.-P. Puissochet, acting for the President of the Sixth Chamber, S. von Bahr and A. Borg Barthet (Rapporteur), 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

1 By its application the Commission of the European Communities seeks a declaration from the Court that, by failing to adopt, so far as Gibraltar is concerned, the laws, regulations and administrative provisions necessary to comply with Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor (OJ 2001 L 206, p. 1), the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive.

2 The first subparagraph of Article 16(1) of Directive 2001/19 provides that the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the directive before 1 January 2003 and forthwith to inform the Commission thereof.

3 Not having received any information from the United Kingdom as to the measures taken, so far as Gibraltar was concerned, to transpose the directive within the period prescribed, the Commission, in accordance with the procedure under Article 226 EC, having given that Member State the opportunity to submit observations, sent it a reasoned opinion by letter of 17 October 2003, requesting it to take the measures necessary to comply with that opinion within two months of its notification. Information subsequently communicated to the Commission by the British authorities having shown that Directive 2001/19 had not yet been transposed, the Commission decided to bring this action.

4 The United Kingdom acknowledges that it has not taken the measures necessary to comply, so far as Gibraltar is concerned, with that directive before the period prescribed by the Commission in the reasoned opinion expired. It states, however, that the provisions necessary for that purpose are currently being drawn up.

5 It must be observed that the Court has consistently held that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, inter alia, Case C-103/00 Commission v Greece [2002] ECR I-1147, paragraph 23, and Case C-323/01 Commission v Italy [2002] ECR I-4711, paragraph 8).

6 It is not disputed in this case that, on the expiry of the period prescribed in the reasoned opinion, no measure intended to secure, so far as Gibraltar was concerned, the transposition of Directive 2001/19 into the domestic legal order had been adopted.

7 In those circumstances, the action brought by the Commission must be considered to be well founded.

8 In light of the foregoing considerations, it must be declared that, by failing to adopt, so far as Gibraltar is concerned, the laws, regulations and administrative provisions necessary to comply with Directive 2001/19, the United Kingdom has failed to fulfil its obligations under that directive.

Costs

9 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 (Sixth Chamber) hereby:

1. Declares that, by failing to adopt, so far as Gibraltar is concerned, the laws, regulations and administrative provisions necessary to comply with Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive;

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

[Signatures]

* Language of the case: English.