C-95/77
ECLI:EU:C:1978:77
- Súd
- Súdny dvor Európskej únie
- IČS
- 61977CJ0095
- Zdroj
- eur-lex.europa.eu ↗
JUDGMENT OF THE COURT OF 11 APRIL 19781
Commission of the European Communities v Kingdom of the Netherlands
"Metrology"
Case 95/77
Member States — Failure to apply a directive — Effect on the functioning of the common market — Absence thereof— Justification for failure to fulfil obligations under a directive — Not permissible (EEC Treaty, Art. 169)
A Member State may not invoke, for to apply that directive has had no the purpose of justifiying a failure to adverse effect on the functioning of the fulfil obligations under a harmonizing common market. directive, the argument that the failure
In Case 95/77
Commission of the European Communities , represented by R. C. Fischer, Legal Adviser to the Commission, acting as Agent, with an address for service in Luxembourg at the offices of Mario Cervino, Legal Adviser to the Commission, Jean Monnet Building, Kirchberg, Luxembourg,
applicant, v
Kingdom of the Netherlands , represented by A. Bos, Assistant Legal Adviser at the Ministry for Foreign Affairs, acting as Agent, with an address for service in Luxembourg at the Embassy of the Kingdom of the Netherlands,
defendant,
APPLICATION for a declaration that, by not putting into force within the prescribed period the laws, regulations or administrative provisions needed in order to comply with the provisions of Council Directive No
1 — Language of the Case: Dutch.
JUDGMENT OF 11 4 1978 — CASE 89/77
71/347/EJEC of 12 October 1971 on the approximation of the laws of the Member States relating to the measuring of the standard mass per storage volume of grain (Official Journal, English Special Edition 1971 (III), p. 852 et seq., as amended by Annex I to Article 29 of the Act concerning the Conditions of Accession and notified to the Member States on 15 October 1971), the Kingdom of the Netherlands has failed to fulfil an obligation under the Treaty establishing the European Economic Community,
THE COURT
composed of: H. Kutscher, President, M. Sørensen and G. Bosco (Presidents of Chambers), A. M. Donner, J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart A O'Keeffe and A. Touffait, Judges,
Advocate General: G. Reischl Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and Issues
The facts, procedure, conclusions and eliminate technical barriers to intra- submissions and arguments of the Community trade which result from parties may be summarized as follows: disparities between the provisions laid down by law, regulation or administrative action in Member States I — Facts and procedure making the marketing or use of goods Council Directive No 71/347/EEC of subject to compliance with certain technical conditions. 12 October 1971 on the approximation of the laws of the Member States The directive is one of a series of relating to the measuring of the directives relating to measuring in standard mass per storage volume of struments and was provided for in the grain (published in the Official Journal General Programme for the elimination of the European Communities, English of technical barriers to trade which Special Edition 1971 (III), p. 852 et seq., result from disparities between the as amended by Annex I to Article 29 of provisions laid down by law, regulation the Act concerning the Conditions of or administrative action in Member Accession and notified to the Member States (Official Journal, English Special States on 15 October 1971) is one of Edition, Second Series, IX, Resolutions the Council directives aiming to of the Council and of the Repres-
COMMISSION v NETHERLANDS
entatives of the Member States, p. 25 et mation as to the quantitative and seq.) adopted by the Council on a commercial value of the grain in proposal from the Commission on 28 question; moreover, that directive aims May 1969. at the "full harmonization" and not the "optional" harmonization of the The system which forms the basis of the measure (standard mass per storage Community directives on measuring volume) which it defines and which thus instruments was introduced by an becomes the only measuring unit "outline directive" adopted by the permitted in trade in grain between Council on 26 June 1971 on the approx Member States. imation of the laws of the Member States relating to common provisions So far as the incorporation of the for both measuring instruments and directive in national law is concerned, methods of metrological control Article 7 provides that: (Official Journal, English Special "1. Member States shall put into force Edition 1971 (II), p. 707, amended by the laws, regulations or admini Council Directive No 72/427/EEC of
strative provisions needed in order 19 December 1972, Official Journal, to comply with this directive within English Special Edition 1972 (28-30 18 months of its notification and December), p. 71), the basic objective of shall forthwith inform the which is to harmonize the provisions on Commission thereof. national controls carried out prior to 2. Member States shall ensure that the the placing on the market of those in struments. The outline directive is based texts of the main provisions of on the mutual recognition of controls. It national law which they adopt in the field covered by this directive provides for an "EEC pattern approval" are communicated to the Com and the affixing of a corresponding mission." mark after verification.
An instrument bearing that mark may move freely The period within which the Member within the Community without control at the frontiers. States, to whom Directive No 71/347/EEC was addressed, had to The objective of Directive No comply with the provisions thereof 71/347/EEC is more particularly to expired on 15 April 1973. "approximate" the laws of the various By letter of 14 February 1975, the Member States relating to the standard Commission gave the Government of mass per storage volume of grain, in the Kingdom of the Netherlands the
particular by giving a uniform definition opportunity to submit its observations of the EEC standard mass per storage under the first paragraph of Article 169 volume, by introducing a reference of the Treaty. The Permanent Repres standard instrument and by laying down entation of the Kingdom of the the requirements which must be satisfied Netherlands replied by letter of 7 April by the measuring instruments used to 1975 that as the Netherlands law on determine the EEC standard mass per weights and measures (the IJkwet 1937)
storage volume. did not permit the directive to be Directive No 71/347/EEC differs from implemented it might be possible to do the other measures adopted within the so within the context of uniform same context because it creates a Benelux regulations which were the standard by means of which the weight subject-matter of a Convention signed of a quantity of cereals contained in a in Brussels on 11 March 1970 and receptacle of a specific volume may be ratified by the Netherlands by law of established; this in fact provides infor- 1 November 1972. Since however it was
JUDGMENT OF 11. 4. 1978 — CASE 95/77
still not possible to foresee at what date comply with the provisions of the two other parties would ratify it, the Council Directive No 71/347/EEC Government of the Netherlands had of 12 October 1971, the Kingdom decided to give itself the necessary of the Netherlands has failed to power to amend the IJkwet and to fulfil an obligation under the inform the Commission thereof when Treaty; the draft amendment had been 2. Order the Kingdom of the approved. The Netherlands Government Netherlands to pay the costs." also promised that there would be an accelerated parliamentary procedure. The Kingdom of the Netherlands left As the promised amendment was not "to the discretion of the Court" the made, the Commission sent a reasoned action to be taken with regard to the opinion to the Netherlands Government conclusions contained in the application on 22 December 1975 requesting it to lodged by the European Commission. take the necessary measures within one month. By letter of 22 January 1976, the Permanent Representation of the Ill — Summary of the sub Kingdom of the Netherlands informed missions and arguments of them that a draft law amending the the parties put forward IJkwet was to be submitted to the during the written proce Parliament within a short period. dure
The Permanent Representation of the- The Commission recalls that according Kingdom of the Netherlands then, by to Article 189 of the Treaty a directive letter of 27 July 1976, sent the is binding in nature and refers to the Commission a copy of the Staatsblad case-law of the Court with regard to 1976 No 324 containing the law of compliance with the periods within 2 June 1976 amending the IJkwet. It which enactments must be implemented, added that the implementing orders in particular the judgment given on were in preparation. In the absence 26 February 1976 in Case 52/75 of the implementing orders, the Commission considered that the Commission of the European Com munities v Italian Republic [1976] ECR Kingdom of the Netherlands had not 277). Since it did not adopt within the complied with the reasoned opinion. Its prescribed periods the laws, regulations application was registered at the Court or administrative provisions needed in of Justice on 28 July 1977. order to comply with the provisions The Court, after hearing the report of of Directive No 71/347/EEC of the Judge-Rapporteur and the views of 12 October 1971, the Kingdom of the the Advocate General, decided to open Netherlands has failed to fulfil its the oral procedure without any obligations under that directive. preparatory inquiry. The Government of the Netherlands recognizes that "there is no difference of opinion" between the parties over the II — Conclusions of the parties fact that the directive was not implemented within 18 months of its The Commission claimed that the Court notification. It "wonders however should: whether it was really necessary for the "1. Declare that, by not adopting Commission to bring this matter before within the prescribed periods the (the) Court". It recalls the cor laws, regulations or administrative respondence which it claims proves that provisions needed in order to the Commission was kept informed of
COMMISSION v NETHERLANDS
the "progress of the implementing Voedselvoorziengs Interventiebureau measures". Moreover, the absence of (intervention and supply office for laws, regulations and/or administrative foodstuffs), an organization which deals measures has had no adverse effect on with intervention procedures in the the Common Market. Netherlands within the context of the
The defendant government recalls that Common Agricultural Policy. Discrimi initially the intention was to implement nation, the danger of which was pointed the EEC directives in the field of out by the Court in Case 52/75, is metrology on the basis of the Benelux therefore impossible. The concern for Convention on metrology and of the effectiveness shown by the Court in Protocol amending that Convention, Case 30/72 (Commission of the these two enactments having been European Communities v Italian ratified by the Netherlands on Republic) with regard to compliance
30 November 1972. Since, however, in with periods within which enactments 1975 it was impossible to foresee at must be implemented should not arise in connexion with a failure to fulfil an what date the States who were parties thereto would ratify them it was obligation which has no adverse effect decided at that time to amend the on the Common Market, especially IJkwet, which was done by law of since "the Kingdom of the Netherlands 2 June 1976. The preparation of the is conscientiously preparing the neces implementing orders had taken some sary provisions" and is keeping the Com mission informed thereof. time because of the structure of the IJkwet and the fact that the EEC The Commission replies by taking note directives in the field of metrology of the statements of the Government of could not all be implemented with equal the Kingdom of the Netherlands. ease on the basis of the outline directive. The fan that it is informed does not The failure to implement them de jure alter the delay in the implementation of did not de facto have any adverse effect the directive of more than four years on the Common Market. No enactment which has been established.
Moreover, adopted by a State is capable of causing the Commission would have found it discrimination in intra-Community difficult to suspend the procedure which trade because the Netherlands neither has already been initiated since the infor refuses nor restricts the placing on the mation supplied gave no indication market of the measuring instrument in as to the date envisaged for the question. "The Netherlands verification implementation of the directive. The authorities have until now received no evidence of the uncertainty existing in applications for EEC pattern approval this respect is that even the defence did and no applications for EEC initial veri not mention any date.
This uncertainty fication in respect of instruments is caused partly by the method followed. referred to in the directive. As far as is In 1975 when the periods within which known such instruments are not manu the directives were to be implemented factured in the Netherlands". De facto, had already expired two years earlier they are used there; the royal and when the Commission had already association Het Comité van Graanhan initiated the procedure under Article delaren (committee of grain merchants) 169, the Netherlands authorities chose a possesses such an instrument which is method invoking three stages: the determining in the case of disputes amendment of the IJkwet; the adoption relating to standard mass per storage of an outline decision; and the intro
volume. That association carries out the duction of specific supplementary regu necessary analyses as laid down in lations. The second stage has still not the conditions of purchase of the been completed whilst the drafts of
JUDGMENT OF 11. 4. 1978 — CASE 95/77
specific regulations have not yet been In addition it is not necessary to prove communicated to the Commission. The that the application is appropriate in defendant government should therefore order to use the procedure under Article have chosen another method or in any 169. case have implemented it earlier. In The Netherlands Government, in its other fields and with regard to other rejoinder, maintains that the comparable directives the Netherlands Government has in fan found ad hoc Commission has brought the matter solutions. before the Court needlessly since the reason why it kept the Commission The argument relating to the Benelux informed of the progress of the Convention is no longer relevant in any implementing measures was not by way case since Belgium and Luxembourg of excuse but so that the conclusion have in the meantime implemented the could be drawn from the information
directive. Nor, finally, is the argument which it gave that it was using all means relating to the particular difficulty of in order to adopt those measures. It has implementing the directive in question not shown needless delay and the "first on the basis of the outline directive at stages" of the implementing measures all convincing since the latter was are of interest: thus, the law of 2 June adopted unanimously by the Council in 1976 contains a certain number of accordance with Article 100 of the specific provisions revealing a link with
Treaty. the application of Directive No 71/347. The Common Market has in fact been Specific provisions of the same type are affected by the failure to fulfil the contained in a draft EEC general obligation: decision on metrology (in which — The Netherlands has not provided standard masses per storage volume are for an "EEC pattern approval" or expressly mentioned as being capable of an "EEC initial verification" for the obtaining the EEC approval and in measuring instruments in question. which their use is subject to guarantees), The fact that the Netherlands auth a draft of which the Netherlands orities for the verification of weights Government offers to produce in this and measures have received no procedure. applications is not surprising since those concerned were no doubt With regard to the system of aware of the absence of legal implementation used, the Netherlands provisions in that connexion. This Government recognizes that the fact may hinder the development of legislative technique chosen cannot the production in the Netherlands of exempt if from complying with a pres those instruments which must in fact cribed period. However, it mentions the be approved or verified in another possibility of having the periods Member State which is normally extended in the future and of using the more difficult than in the country unanimity rule so that a directive itself; corresponds to the concepts established in national legislation, which would in — Any use in Netherlands trade of the no way help to facilitate the Council's measure in question is in the present circumstances an actual use of a
deliberations. In this case it preferred to insert the directive in question into a "standard mass per storage volume" suitable legal framework enabling a which cannot be recognized, because of the absence of the large number of EEC directives to be formalities and of the mark laid applied fully, wholly and rapidly. down in the directive, as an "EEC The directive in question is particularly standard mass per storage volume". difficult to implement, as shown by the
COMMISSION v NETHERLANDS
very frequent meetings of the working to the rejoinder; the drafts of a general party responsible for the preparation of EEC decision on metrology and of a the measures implementing the IJkwet decision amending the decision on which was amended in 1976. The ad hoc standard measures (necessary to enable or provisional measures could not designation of the standard mass per anticipate the necessary amendment of storage volume which, as a standard the IJkwet. Finally, the exchange of instrument for the determination of the views within the context of the Benelux EEC natural weight, comes within the Convention had begun within the jurisdiction of the Comité van Graan required time but Belgium and Luxem handelaren) were presented to the bourg had apparently, in contrast to the Council of Ministers at the end of last Netherlands, an appropriate and November; finally, work on the draft sufficient legal basis to implement the decision on measuring units, which was directives in the field of metrology. necessary in order to provide the The Netherlands Government maintains designation "EEC natural weight" with that the absence of implementing the necessary guarantees, is at quite an measures has had no effect on the advanced stage. functioning of the Common Market. As The Netherlands Government hopes there is no solution with regard to that the complete series of measures will metrology in Netherlands legislation be ready towards the middle of 1978. those concerned directly contact the weights and measures authorities; however, the latter have until now had IV — Oral procedure no matters brought before them. The suppositions mentioned by the Commission with regard to the conduct The parties appeared at the audience on of those concerned, allegedly influenced 21 February 1978. They developed the by the existence of a lacuna in the arguments put forward during the legislation, are pure hypotheses. written procedure. They replied to various questions put to them by the With regard to the progress of the work Court; in particular it was stated that relating to the adoption of the the two other States who were parties to Netherlands implementing measures, the Netherlands Government wishes to the Benelux Convention have applied the directive (Belgium on 14 March take stock: the law of 2 June 1976 1975). (Staatsblad No 324) came into force on 1 January 1978 as follows from the The Advocate General delivered his Royal Decree of 28 October 1977 opinion at the hearing on 8 March (Staatsblad No 615), which is annexed 1978.
Decision
1 By application lodged at the Registry on 28 July 1977, the Commission brought before the Court, under Article 169 of the EEC Treaty, an application for a declaration that the Kingdom of the Netherlands, by not adopting within the prescribed period of 18 months the laws, regulations or administrative provisions needed in order to comply with the provisions of
JUDGMENT OF 11. 4 1978 — CASE 95/77
Council Directive No 71/347/EEC of 12 October 1971 on the approxi mation of the laws of the Member States relating to the measuring of the standard mass per storage volume of grain (Official Journal, English Special Edition 1971 (III), p. 852 et seq.), has failed to fulfil an obligation under the Treaty.
2 This directive is one of a series of directives relating to measuring in struments expressly provided for in the General Programme for the elimination of technical barriers to trade which result from disparities between the provisions laid down by law, regulation or administrative action in Member States which was adopted by the Council on 28 May 1969 (Official Journal, English Special Edition, Second Series, IX, p. 25).
3 This general programme was implemented by an outline directive of the Council, Directive No 71/316/EEC of 26 July 1971 on the approximation of the laws of the Member States relating to common provisions for both measuring instruments and methods of metrological control (Official Journal, English Special Edition (II), p. 707), whose aim was essentially to harmonize the national provisions relating to the control of those instru ments and which was based on the fundamental principle of mutual recognition of controls.
4 With this general objective in mind, Directive No 71/347/EEC aims more particularly to harmonize the legislation of the various Member States relating to the standard mass per storage volume of grain, in particular by giving a uniform definition of the EEC standard mass per storage volume by introducing a reference standard instrument and laying down the conditions which must be satisfied by the measuring instruments used to determine the EEC standard mass per storage volume.
5 Thus the exclusive and compulsory use of an EEC standard mass per storage volume in all Member States will have the effect of preventing disputes in intra-Community trade about the method of measuring grain.
6 Under Article 7 of Directive No 71/347/EEC, the Member States must adopt the appropriate measures for complying therewith within a period of 18 months of its notification; that period expired on 15 April 1973 without the Netherlands authorities' having put into force the laws, regulations or administrative provisions needed.
COMMISSION v NETHERLANDS
7 The Commission, in application of Article 169 of the EEC Treaty, gave the Kingdom of the Netherlands, by letter of 14 February 1975, the opportunity to submit its observations.
8 The defendant has not denied the failure to fulfil obligations under the Treaty complained of and has expressed its regrets at having been unable to adopt the necessary provisions of national law in due time and informed the Commission of the progress of the implementing measures, pointing out that the absence of laws, regulations or administrative provisions in the field covered by Directive No 71/347/EEC has had no adverse effect on the functioning of the Common Market.
9 Initially, the intention of the Netherlands Government had been to implement the EEC directives in the field of metrology on the basis of a Benelux Convention of 11 March 1970 ratified by the Netherlands on 30 November 1972.
10 As that Convention had not been ratified by Belgium and Luxembourg and because the Commission had continued the procedure under Article 169 of the Treaty on 22 December 1975 by sending the Netherlands Government the reasoned opinion provided for in that article, the Kingdom of the Netherlands decided to adopt another course and to amend the IJkwet (law on weights and measures) of 1937, Staatsblad No 627, so as to have available an appropriate enactment for the purpose of implementing the EEC directives in the field of metrology.
11 On 2 June 1976 the law amending the IJkwet was passed, enabling the Netherlands authorities to adopt a measure which, for the purpose of implementing Directive No 71/347/EEC, had to be followed by specific and more detailed rules in respect of which the Netherlands Government declared in its pleadings and at the hearing on 21 February 1978 that it hoped to be able to bring them into force during 1978.
12 This does not alter the fact that the measures intended to implement the directive have not been adopted within the prescribed period.
13 The argument that the failure to apply that directive has had no adverse effect on the functioning of the Common Market cannot be accepted in view of the objective pursued by that directive.
JUDGMENT OF 11 4 1978 — CASE 95/77
14 It follows that, since the Kingdom of the Netherlands has not put into force within the prescribed period the provisions needed to comply with Council Directive No 71/347/EEC on the approximation of the laws of the Member States relating to the measuring of the standard mass per storage volume of grain, it has failed to fulfil an obligation under the Treaty.
Costs
15/17 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs, if they have been asked for. The defendant has failed in its submissions. It is therefore necessary to order it to pay the costs.
On those grounds
THE COURT
hereby:
1. Declares that, by not putting into force within the prescribed period the provisions needed to comply with Council Directive No 71/347/EEC of 12 October 1971 on the approximation of the laws of the Member States relating to the measuring of the standard mass per storage volume of grain, the Kingdom of the Netherlands has failed to fulfil an obligation under the Treaty.
2. Orders the defendant to pay the costs.
Kutscher Sørensen Bosco Donner Mertens de Wilmars
Pescatore Mackenzie Stuart O'Keeffe Touffait
Delivered in open court in Luxembourg on 11 April 1978.
A. Van Houtte H. Kutscher
Registrar President