C-313/89
ECLI:EU:C:1991:343
- Súd
- Súdny dvor Európskej únie
- IČS
- 61989CC0313
- Zdroj
- eur-lex.europa.eu ↗
COMMISSION v SPAIN
O P I N I O N OF MR A D V O C A T E GENERAL LENZ delivered on 19 September 1991 *
Mr President, 'Upon accession, the new Member States Members of the Court, shall be considered as being addressees of and as having received notification of Directives and Decisions within the meaning of Article 189 of the EEC Treaty 1. The present action brought against the Kingdom of Spain for failure to fulfil its obligations under the Treaty relates to the non-transposition into Spanish law of Article 395 of the Act provides: Directive 80/155/EEC ' concerning the coordination of provisions laid down by law, regulation or administrative action relating to the taking up and pursuit of the 'The new Member States shall put into activities of midwives. effect the measures necessary for them to comply, from the date of accession, with the provisions of Directives and Decisions within the meaning of Article 189 of the 2. Two charges are made: (1) the Directive EEC Treaty was not transposed by 1 January 1986, the date of accession of the Kingdom of Spain; (2) no subsequent implementing provisions were taken or subsequent implementing 5. By 1 January 1986, the date of accession provisions were inadequate. of the Kingdom of Spain, no implementing measures had been adopted. The Spanish Government does not deny that it infringed the Treaty by failing to transpose the 3. The legislative background to the Directive by the date of accession. dispute, the facts of the case and the Therefore it cannot matter whether the ob- submissions of the parties are set out in the ligation to transpose legislation at such an Report for the Hearing. early point in its membership of the Community was 'fair' and 'appropriate', for an undisputed infringement of the Treaty cannot subsequently be erased on equitable 1. The charge that Directive 80/155 had grounds. not been transposed by 1 January 1986
4. Article 392 of the Act concerning the 6. Article 6 of the Directive admittedly Conditions of Accession of the Kingdom of allows a period of three years for Spain provides: 2 compliance with it. At most, one could therefore ask whether the three-year trans- * Original language: German. position period for the new Member States 1 — OJ 1980 L 33, p. 8. began to run only from the fictitious noti- 2 — Act concerning the Conditions of Accession of the fication provided for by Article 392 of the Kingdom of Spain and the Portuguese Republic and the Amendments to the Treaties (OJ 1985 L 302, p. 23). Act of Accession.
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OPINION OF MR LENZ —CASE C-313/89
7. That view is not supported by the training did not meet the minimum wording of Article 395 of the Act, which requirements of the Directive. obliges the acceding States to comply with the Directives from the date of accession. Furthermore, the transitional provision subsequently added to Directive 80/155 as paragraph 6 of Article 1 by Directive 2. The charge that the Directive was inad- 89/594/EEC 3 provides that training equately transposed courses falling within the scope of the Directive and begun before 31 December 1985 may still be completed in accordance with the previous provisions. That trans- 10. The parties adopt differing positions on itional provision implies that new provisions the question of inadequate implementation must come into force on 1 January 1986. of the Directive. In reply to the criticism Finally, in anticipation of the outcome of that the Directive has not been transposed, the examination of the second charge, it the defendant Government contends that must be pointed out that the Directive had the issuing of a framework decree, Royal not been correctly incorporated into Spanish Decree 992/1987 of 3 July 1987, must be law even by 1 January 1989, three years regarded as constituting transposition of the after accession. Directive. It points out that Article 3 of that decree provides that the provisions for implementing the Decree must comply with the Directive.
11. If the defendant's view were correct, 8. Moreover, in the reasoned opinion of there would be no grounds for prosecuting 19 April 1989, the defendant Member State the alleged breach of the Treaty in these was granted a period of two months within proceedings since transposition would have which to meet the demands set out therein. taken place before these proceedings were Even during this period the defendant took begun. no steps to fulfil the obligations under Community law of which it had been reminded by the Commission.
12. The applicant, on the other hand, contends that for several reasons the Decree cannot be regarded as a correct transposi- tion of the Directive. First, in a number of respects the content of the Decree is incom- patible with the provisions of the Directive, both as regards the transitional provisions 9. T h e defendant's argument that at the and as regards the minimum period of time of Spain's accession the training of training. Secondly, the Decree is not midwives was not inferior to that prescribed directly applicable, as it still requires the in the Directive is therefore irrelevant, issue of implementing provisions by a particularly as in certain respects the National Council for Nursing Specializa- 3 — Council Directive of 30 October 1989 (OJ 1989 L 341, tions, which has not yet even been estab- p. 19). lished.
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COMMISSION v SPAIN
13. Until the day of the oral procedure, has committed a breach of the Treaty. 2 July 1991, in other words more than five Moreover, five and a half years after Spain's and a half years after Spain's accession to accession, there is no more latitude for any the European Communities, provisions transitional arrangements. 4 implementing the decree governing the training of midwives, inter alia, had still not been issued. It must therefore remain an open question whether a framework decree or framework law can be regarded as a correct transposition of a directive if the content and entry into force of the implementing provisions are such that upon 16. If 'major difficulties' were encountered their adoption it must be assumed that the in applying the Directive, a dialogue directive has been fully transposed. between the defendant and the Commission in accordance with Article 7 of the Directive might have been possible at an earlier stage. In fact, the defendant Government proved rather uncooperative during the pre-lit- igation procedure in that it responded neither to the formal notice nor to the reasoned opinion.
14. A reference made in a Member State's national legislative act to the provisions of the directive as a binding requirement for the validity of the implementing measures could be regarded as a standing reference and thus as constituting incorporation of the 17. In the proceedings before the Court, the directive's provisions into the Member defendant Government denied infringing State's legislation. However, as long as the the Treaty — at least as regards late trans- national implementing measure requires position of the Directive — but then further implementing provisions for the requested postponement of the oral decree to have direct legal effects, the procedure, which had originally been set for Directive cannot be considered to have been 20 March 1991, in order to meet the transposed into national law. requirements of the Directive. Despite this considerable delay, which gave the defendant a further opportunity to in- corporate the Directive into national law and thus to avoid censure by the Court, no provisions regulating the training of midwives in Spain in accordance with the Directive were issued.
4 — Sec the transitional provisions in Royal Decree 992/1987 15. Since no definitive provisions regulating of 3 July 1987, and especially point 4: 'Pending the estab- lishment of the National Council for Nursing Specializ- the training of midwives in accordance with ations for which Article 9 of this Royal Decree provides, the Directive have been adopted in Spain the Ministry of Education and Science shall be authorized to lay down provisionally, subject to receiving a and the necessary transitional provisions favourable repon from the Ministry of Health and Consumption, the training courses for the nursing have not even been issued in Spain by the specialities specified in this Decree and to adopt the competent Minister, the Kingdom of Spain measures necessary for their implementation during 1987.'
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18. At the hearing on 2 July 1991 the tation of students who had already begun representative of the defendant Member their training. More far-reaching trans- State produced a legislative act, Royal itional arrangements, especially a pro- Decree 1017/1991, which, he claimed, longation of the transitional provisions, related to the transposition of Directive were not to be adopted unilaterally by the 80/155 into Spanish law. Spanish legislative bodies.
19. After examining the legislative act, the applicant informed the Court that this 21. Finally, the objection of the defendant decree could likewise not be regarded as Government that only Spanish nationals are transposing Directive 80/155. In the disadvantaged by non-transposition of the applicant's opinion, the duration and Directive should be dismissed; according to content of the training of midwives in Spain the Spanish Government, neither the continue to be unregulated. Furthermore, freedom of establishment nor the freedom the training programmes required by the to supply services for nationals of other Directive have not been established, nor Member States is affected. This defence have measures been taken to adapt diplomas cannot excuse an infringement of the awarded for training courses begun after Treaty. The argument overlooks the 1 January 1986. purpose of the coordination measures, which are intended to ensure the equi- valence of certain training courses 20. The transitional provision subsequently throughout the Community. added to Directive 80/155 by Article 24 of Directive 89/594 (authorization for training courses begun before 31 December 1985 to be concluded in accordance with the old 22. Since complete and correct trans- provisions) did not have the effect of position of the Directive has not taken place extending the time-limit for transposition in five and a half years after the prescribed favour of the defendant Member State. Its date, it should be held that the Kingdom of purpose was merely to protect the expec- Spain has infringed the Treaty.
Conclusion
2 3 . I am of the opinion t h a t the C o u r t should:
'(1) Declare that the K i n g d o m of Spain has infringed the T r e a t y by not a d o p t i n g within the prescribed p e r i o d all the measures necessary t o implement Directive 8 0 / 1 5 5 concerning t h e c o o r d i n a t i o n of provisions laid d o w n by law, r e g u - lation or administrative action relating t o the t a k i n g u p and pursuit of the activities of midwives.
(2) O r d e r the K i n g d o m of Spain t o pay the costs.'
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